Shaw Contracting (Aust) Pty Ltd T/A Shaw Contracting

[2024] FWCA 4160

[2024] FWCA 4160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Shaw Contracting (Aust) Pty Ltd T/A Shaw Contracting

(AG2024/4284)

Building, metal and civil construction industries
COMMISSIONER REDFORD	MELBOURNE, 27 NOVEMBER 2024

Application for approval of the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Shaw Contracting (Aust) Pty Ltd Enterprise Agreement 2025 the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shaw Contracting (Aust) Pty Ltd T/A Shaw Contracting. The Agreement is a single enterprise agreement.

Undertakings

1. In response to several issues raised with Shaw Contracting in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement. 

1. The undertakings relate to:  

a.The definition of a shiftworker, for the purposes of the additional weeks annual leave provided for in the National Employment Standards.

b.Part time employment, to ensure that before commencing part-time employment, the employee and the employer will agree in writing to the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.

c.Weekend penalty rates, to provide for a penalty rate of 200% on Saturdays for all time after 12 noon

1. Weekend overtime, to ensure that an employee required to work on a Saturday must be afforded at least 3 hours work or 3 hours pay, and on Sunday, at least 4 hours work, or 4 hours pay.

Workplace Delegates Rights

1. As the Agreement does not contain a workplace delegates rights term, Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the relevant is taken to be a term of the Agreement.

Interaction with the National Employment Standards

1. Clause 8(a) of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

Consideration

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2024.

COMMISSIONER

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ANNEXURE A