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austlii:cth/FWCA/2026/929
General information, not legal advice.
FWCA
2026-04-13
Original judgment source is linked above.
s.185 - Application for approval of a greenfields agreement
GAMUDA ENGINEERING PTY LTD AND THE AWU NEW SOUTH WALES GREENFIELD AGREEMENT 2026
Application for approval of the Gamuda Engineering Pty Ltd and the AWU New South Wales Greenfield Agreement 2026
[1] Gamuda Engineering Pty Ltd has applied for approval of a greenfields agreement known as the Gamuda Engineering Pty Ltd and the AWU New South Wales Greenfield Agreement 2026 ("Agreement"). The application is made under section 185 of the Fair Work Act 2009 (Act).
[2] The Agreement is between Gamuda Engineering and the Australian Workers' Union (AWU). It was made on 2 February 2026.
[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) opposed the application. It is not necessary to traverse the grounds on which it did so. The CEPU's objections were resolved on the basis of an undertaking provided by Gamuda Engineering, a copy of which is attached in Annexure A to this decision. In correspondence with my Chambers, the AWU confirmed that it considered the undertaking to be acceptable.
[4] I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement. Pursuant to section 190(3) of the Act, I accept the undertaking. It is taken to be a term of the Agreement.
[5] Clause 2.6 of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards, and the NES provide a greater benefit to employees, the NES will prevail to the extent of the inconsistency. Having regard to that provision, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of the Agreement:
(1) The Agreement does not contemplate compassionate leave being available after the stillbirth of a child of the employee or a member of the employee's immediate family or household (section 104(1)(b) of the Act) or after the employee or the employee's spouse or de facto partner has a miscarriage (section 104(1)(c) of the Act).
(2) Clause 27.6 of the Agreement provides that if an employee fails to give the required notice of termination, Gamuda Engineering "will have the right to withhold monies due to the Employee with a maximum amount equal to one weeks' ordinary time earning". On its face, the clause appears impermissibly to allow Gamuda Engineering to withhold NES entitlements owing to the employee on termination.
[6] Having considered the terms of the Agreement and the declarations provided by Gamuda Engineering and the AWU, I am satisfied that:
(1) the Agreement meets the requirements of section 172(2)(b) of the Act; and
(2) each of the requirements of sections 186, 187 and 190 of the Act as are relevant to the application for approval have been met. In particular, I am satisfied that:
(a) the AWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work to be performed under it; and
(b) it is in the public interest to approve the Agreement.
[7] For the purposes of section 53(2)(b) of the Act, I note that the Agreement covers the AWU.
[8] The Agreement is approved. In accordance with section 54 of the Act, the Agreement will operate from 20 April 2026. The nominal expiry date of the Agreement is 1 February 2030.
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