Strait Up Cranes NSW Pty Ltd

[2025] FWCA 485

[2025] FWCA 485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Strait Up Cranes NSW Pty Ltd

(AG2025/124)

STRAIT UP CRANES NSW PTY LTD ENTERPRISE AGREEMENT 2025

Mobile crane industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 6 FEBRUARY 2025

Application for approval of the Strait Up Cranes NSW Pty Ltd Enterprise Agreement 2025

Introduction

1. Strait Up Cranes NSW Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Strait Up Cranes NSW Pty Ltd Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Mobile Crane Hiring Award 2020 (Mobile Crane Hiring Award).

Sufficient Interest and Sufficiently Representative

1. The F17B Declaration states that only two employees are covered by the Agreement. However, the Agreement includes a wide range of classifications, raising potential concerns about whether the employees who voted on the Agreement were employed across the full range of classifications it covers. The F17B Declaration submitted by the Employer does not provide information on whether the voting employees had a sufficient interest in the terms of the Agreement or were sufficiently representative of the broader workforce intended to be covered. As a result, I was unable to make a determination on these matters in accordance with s.188(2) of the Act and paragraph 17 of the Statement of Principles (the Principles).

1. The Employer subsequently provided submissions which included information relevant to the issue of sufficient interest and sufficiently representative. Based on those submissions I am satisfied that the employees requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative.

Applicable Award

1. The F17B Declaration and the Notice of Employee Representational Rights (NERR) lodged with the Commission references the Mobile Crane Hiring Award. However, the Agreement and supplementary documentation also contain references to the Vehicle Repair, Services and Retail Award 2020, creating potential ambiguity.

1. The Employer clarified in its submissions that the Vehicle Repair, Services and Retail Award 2020 does not apply to the Agreement.

Model Consultation Terms

1. The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model consultation term can be found in Schedule 4.

Delegates’ Rights Term

1. The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Mobile Crane Hiring Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Schedule 5.

Compassionate Leave

1. The entitlement to compassionate leave provided by clause 32 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household pursuant to s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage pursuant to s.105(1)(c) of the Act.

1. The Employer provided an undertaking to address this issue.

Deductions Upon Termination

1. Clause 28.6 of the Agreement provides that if the employee fails to give the required notice of termination, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. The effect of this clause is that it may permit an employer to deduct an employee’s National Employment Standards (NES) entitlements. This raises the concern that clause 28.6 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. In contrast, clause 33.1(d) of the Mobile Crane Hiring Award restricts deductions to a maximum of one week’s pay when notice is not provided and limits deductions to wages only, excluding NES entitlements.

1. The Employer provided an undertaking to address this issue.

Award Incorporation

1. Clause 3 of the Agreement states that it shall be read and applied with the Award. However, the Agreement does not explicitly incorporate the Award, creating ambiguity regarding its application where the Agreement is silent on specific Award provisions. It is unclear whether the Award applies in such circumstances, particularly as the Agreement omits various entitlements provided under the Award, including but not limited to weekend penalties and allowances.

1. The Employer provided an undertaking that the Award is incorporated.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Schedule 3. 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.

Section 186, 187, 188 and 190

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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2025. The nominal expiry date of the Agreement is 6 February 2029.

DEPUTY PRESIDENT

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