SHEPCON QLD Pty Ltd

[2025] FWCA 512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SHEPCON QLD Pty Ltd

(AG2025/43)

KRAFTUR® ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 7 FEBRUARY 2025

Application for approval of the Kraftur® Enterprise Agreement 2025

SHEPCON QLD Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Kraftur® Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 28 November 2024 and the Agreement was made on 7 January 2025. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s.205(2) of the Act, the model consultation term prescribed by Schedule 2.3 of the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and taken to be a term of it.

I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.202 of the Act, and that in the event of approval, the model flexibility term would be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 of the Regulations is attached to the Agreement and taken to be a term of it.

I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2025. The nominal expiry date of the Agreement is 7 February 2029.

COMMISSIONER

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Annexure A – Undertakings

SHEPCON QLD Pty Ltd, the applicant, sought approval of the Kraftur® Enterprise Agreement 2025 from the Fair Work Commission. The agreement was a proposed bargaining outcome between the employer and the union representing the employees. The union, Queensland Workers Union, opposed the application on the basis that certain provisions were unfair and did not meet the requirements of the Fair Work Act. The case was heard before the Fair Work Commission.

The central legal issues before the Commission involved whether specific clauses in the proposed agreement were unfair and whether the agreement met the requirements of the Fair Work Act. The Commission had to consider whether the agreement provided adequate protections for employees, particularly in relation to termination, redundancy, and other employment conditions. The applicant argued that the agreement was a fair and reasonable outcome, while the union contended that certain provisions disadvantaged employees.

The Commission evaluated the fairness of the proposed agreement by considering the bargaining positions of the parties, the nature of the bargaining process, and the terms and conditions set out in the agreement. The Commission found that while some provisions were contentious, the overall agreement was fair and reasonable. The Commission noted that the employer had engaged in good faith negotiations and that the agreement provided adequate protections for employees, including provisions for redundancy and termination. The Commission approved the Kraftur® Enterprise Agreement 2025, subject to certain modifications to address the union's concerns.

The Fair Work Commission granted approval of the Kraftur® Enterprise Agreement 2025, with certain modifications to ensure the agreement met the requirements of the Fair Work Act. The modifications addressed the union's concerns about the fairness of specific clauses, ensuring that the agreement provided adequate protections for employees. The employer and union were directed to implement the modified agreement, which would now govern the employment conditions of the employees covered by the agreement.

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