Westforce Construction Pty Ltd Summary

[2024] FWCA 2549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Westforce Construction Pty Ltd

(AG2024/2217)

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 12 JULY 2024

Application for approval of the Westforce Construction Enterprise Agreement 2024.

Westforce Construction Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Westforce Construction Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is 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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

I note that clause 29 of the Agreement appears to be inconsistent with the National Employment Standards (NES). However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 12 July 2024 and, in accordance with s 54, will operate from 19 July 2024. The nominal expiry date of the Agreement is 12 July 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Westforce Construction Pty Ltd sought approval for their 2024 enterprise agreement under Section 185 of the Fair Work Act 2009, and the matter was heard by Commissioner Lim of the Fair Work Commission. The applicant submitted written undertakings to ensure that no employee covered by the agreement would suffer financial detriment, and no substantial changes would occur to the agreement. The commission examined the application and accompanying declarations to determine whether the requirements of Sections 186, 187, 188, and 190 of the Act were met. The commission noted that Clause 29 of the agreement seemed inconsistent with the National Employment Standards (NES), but was satisfied that Clause 4.3 of the agreement would ensure that the more beneficial NES entitlements would prevail in cases of inconsistency.

The legal issues before the commission were whether the applicant had met the relevant requirements of the Fair Work Act and whether the agreement's provisions were consistent with the NES. The commission found that the applicant had met all relevant requirements, including providing written undertakings to protect employees from financial detriment and substantial changes to the agreement. The commission also determined that Clause 4.3 of the agreement would ensure the NES entitlements would prevail in instances of inconsistency with Clause 29. The commission was satisfied that the agreement met all legal requirements and would not cause financial detriment to employees.

Based on the above findings, Commissioner Lim approved the Westforce Construction Enterprise Agreement 2024, subject to the provided undertakings. The agreement will operate from 19 July 2024, as per Section 54 of the Act, and will have a nominal expiry date of 12 July 2028. The commission determined that the agreement met all legal requirements and would not cause financial detriment to employees. The approval was granted on 12 July 2024, and the agreement will take effect from the specified date.

Westforce Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established