Application for approval of the Hully Foundations Pty Ltd Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Hully Foundations Pty Ltd Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hully Foundations Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings, a copy of which 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.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[4] The copy of the Agreement filed with the application for approval contained an obvious error in clause 5.10.3. This clause referred to penalty rates in clause 5.4.1. However, the Agreement does not contain such a clause. The correct reference is clause 5.8.1, which refers to overtime penalties. I note that the Commission under s.218A of the Act may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity. Accordingly, I consider it appropriate in the circumstances to correct clause 5.10.3 as follows:

• In the case of broken shifts (i.e. less than 38 ordinary hours worked over five consecutive shifts Monday to Friday), an Employee shall be paid penalty rates as per clause 5.8.1.

[5] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

• Compassionate leave: Clause 6.8 provides for compassionate leave where a member of the employee's immediate family or household dies or suffers a life-threatening illness or injury. However, it does not provide for compassionate leave where a child is stillborn or the employee's spouse or de facto partner has a miscarriage per s.104 of the Act.

• Annual leave: Clause 6.6.1 appears to provide for annual leave in days instead of weeks as per s.87 of the Act.

• Termination: Clause 3.6.4 of the Agreement provides that notice is not paid to employees in the case of misconduct or other grounds that justify instant dismissal. This appears inconsistent with s.123(1)(b) of the Act which provides that notice does not apply to an employee whose employment is terminated because of serious misconduct.

• Redundancy: Clause 3.10.1 of the Agreement provides that employees are exempt from redundancy provisions where employment is terminated as a consequence of misconduct on the part of the employee. This appears inconsistent with s.123(1)(b) of the Act which provides that redundancy does not apply to an employee whose employment is terminated because of serious misconduct.

• Redundancy: Clause 3.10.3 of the Agreement provides 3 weeks of pay for redundancy with more than 1 year of service but less than 2. This is less than the NES which provides 4 weeks of pay.

[6] Noting clause 1.5.4 of the Agreement, 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.

[7] The Agreement is approved and will operate in accordance with s.54 of the Act from 18 December 2025. The nominal expiry date of the Agreement is 11 December 2028.

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