State Plant Hire Pty Ltd

[2025] FWCA 1604

[2025] FWCA 1604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

State Plant Hire Pty Ltd

(AG2025/1097)

STATE PLANT HIRE ENTERPRISE AGREEMENT 2025 – 2029

Building, metal and civil construction industries
COMMISSIONER FOX	MELBOURNE, 23 MAY 2025

Application for approval of the State Plant Hire Enterprise Agreement 2025 – 2029.

1. An application has been made for approval of an enterprise agreement known as the State Plant Hire Enterprise Agreement 2025 – 2029 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by State Plant Hire Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. The Form F17B indicated that employees were notified of the details of the vote 31 March 2025. I note that the vote commenced less than seven clear days later, on 7 April 2025. To satisfy the requirements under s.186(2)(a) that the Agreement was genuinely agreed to by the employees, the Commission must consider whether the employer has taken all reasonable steps to explain the Agreement to the employees and that the explanation was provided in a manner appropriate to the circumstances and needs of the employees per s.188(1) and s.180(5) of the Act, as well as paragraphs 8 to 14 of the Statement of Principles on Genuine Agreement. In the circumstances, I am satisfied that despite the shorter access period, employees were not likely to be disadvantaged, and the Agreement was genuinely agreed to.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Accrual of Annual Leave: Clause 26.1(a) of the Agreement specifies that employees (other than casuals) will accrue annual leave entitlements at the rate of four weeks per year of continuous service (less the period of annual leave). Section 87(2) of the Act specifies that an employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work and accumulates from year to year.

• Accrual of Personal/ Carer’s Leave: Clause 27(a) of the Agreement specifies that new employees accrue sick leave entitlements of one day per month at the beginning of the first ten months of employment. Section 96(2) of the Act specifies that an employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work and accumulates from year to year.

• Evidence of Personal/ Carer’s Leave: Clause 27(d) specifies that an employer may ask for a medical certificate/statutory declaration for absences of 2 or more days or if absences are frequent and clause 27(e) states that certificates are required for absences either side of a weekend or a public holiday. Section 107(3) of the Act provides that evidence must be that which satisfies a reasonable person.

• Family and Domestic Violence Leave: Clause 33 of the Agreement states that all employees full, part and casual are entitled to 5 days unpaid family and domestic violence leave each year. Pursuant to s.106A(1) of the Act, employees are also entitled to 10 days paid family and domestic violence leave each year.

• Compassionate Leave: Clause 29 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. The clause silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act.

1. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 30 May 2025. The nominal expiry date of the Agreement is 1 April 2029.

Section 218A Variation

1. I note that the title of the Agreement under clause 1 is stated as State Plant Hire Enterprise Agreement and appears to omit the operational years of the Agreement, being 2025 to 2029. Under s.218A of the Act, identifying this as a drafting error, I sought to vary clause 1 of the Agreement on the Commission’s own initiative.

1. In correspondence to the parties, I advised the parties that I intended to amend the relevant clause pursuant to s.218A of the Act as I considered it to be an ‘obvious error’. Parties were given the opportunity to raise any objections to this course of action, and no objections were received by the Commission.

1. I am satisfied that the relevant error identified is an obvious error, and I am further satisfied that the amendment should be made pursuant to s.218A of the Act. Pursuant to the below order, the error is amended.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

A.          By varying the name of the Agreement under clause 1 from State Plant Hire Enterprise Agreement to State Plant Hire Enterprise Agreement 2025 – 2029.

B.         The variation will operate from 30 May 2025.

COMMISSIONER

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Annexure A