Whelans Group Investments Pty Ltd

[2025] FWCA 2267

[2025] FWCA 2267

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Whelans Group Investments Pty Ltd

(AG2025/1956)

WHELANS MAJOR PROJECTS ENTERPRISE AGREEMENT 2025 -

2029

Building, metal and civil construction industries
COMMISSIONER CLARKE	MELBOURNE, 9 JULY 2025

Application for approval of the Whelans Major Projects Enterprise Agreement 2025 - 2029

1. An application has been made for approval of a single enterprise agreement known as the Whelans Major Projects Enterprise Agreement 2025-2029. The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Whelans Group Investments Pty Ltd (employer). Two employees were appointed as bargaining representatives of the employees to be covered by the agreement, however no employee organisations were bargaining representatives.

1. Prior to approving the agreement, it was necessary to make some further enquiries of the Applicant relating to following matters:

(a)   Whilst an explanation was provided as to how the classification structure in the Agreement mapped to that in the Building and Construction Industry General On-site Award 2020, it was evident that there were no classification for Apprentices or Trainees. This raised an issue as to how their exclusion might interact with the requirement that I be satisfied that the group of employees to be covered by the Agreement were fairly chosen, as requires by subsection 186(3);

(b)   The Agreement provided that employees may be required to take leave during a shutdown period. There were separate provisions concerned with shutdowns that were part of the Christmas / New Year period (clause 36.2) and those that were not (clause 36.3). Directions to utilise paid leave during the latter were required to be reasonable, directions to do so during the former were not. This raised the issue of whether the NES precedence term at clause 4 was sufficient to deal with the requirements set out in paragraph (c) of subsection 186(2) and subsection 93(3), or whether an undertaking would be required.

(c)   Additional information was sought concerning the decision to exclude from the Agreement the allowances provided at clauses 23.2-23.5, 23.7-23.8 and 23.10 of the Award, to ensure the BOOT was applied in manner consistent with the kinds of work that were reasonably foreseeable (see subsections 193A(6) and 193A(6A)).

(d)   The information provided with the Application suggested that a majority of the employees of the employer were casual, such that the level of participation of casual employees in the voting process could be material to its outcome. The Applicant was invited to provide information concerning whether the employees who voted at the time included all and only employees “employed at the time” in the sense in which expression is used in subsection 181(1). The bargaining representatives were provided with a link to the decision of Commissioner Matheson in Monadelphous Engineering Pty Ltd [2025] FWCA 1123 to assist in responding to this matter.

1. In correspondence with chambers the following became apparent (and was undisputed):

(a)   The employer does not employ and does not propose to employ any apprentices or trainees on any of its major projects to which the Agreement will apply. This resolves my concern regarding the “fairly chosen” test.

(b)   The Applicant took the view that the NES precedence clause was sufficient to deal with the concern regarding directions to take annual leave during a shutdown, but offered an undertaking to address the concern in case it was required. The proposed undertaking included a statement that “Clause 36.2 of the Agreement operates subject to the National Employment Standards, and only to the extent where it reasonable that employees may be directed to take paid or unpaid leave or RDO’s during the temporary shutdown for the Christmas / New Year period.” I agree with the Applicant’s assessment that undertaking is not required in light of the NES precedence clause. The drafting of the undertaking further signals that the employer is aware of its obligations in this regard.

(c)   It is not reasonably foreseeable that the kinds of work which attract the payment of the allowances provided at clauses 23.2-23.5, 23.7-23.8 and 23.10 of the Award will be performed by the employees covered by the Agreement. The BOOT has been applied on this basis.

(d)   Each of the casual employees that were asked to vote on the agreement worked at least one shift during the period between the Agreement and associated materials being distributed for consideration by employees, and each of them also worked on the day of the vote. In the circumstances, I am satisfied that the voting cohort included all casual employees (and only those casual employees) who were “employed at the time” in the relevant sense, because the employer has established the actuality and currency of their casual employment during the voting period and the period immediately preceding it.

1. One minor irregularity in the Application is that the signature page was not completed in the copy of the Agreement provided. A signature page was provided separately. To the extent necessary I rely on sections 586(a) and (b) and section 218A to rectify this matter and ensure the Agreement is published with completed signature page included. Having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as 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 16 July 2025. The nominal expiry date of the agreement is 17 July 2029.

COMMISSIONER

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