[1] Regional Home Builders Pty Ltd (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) seeking termination of the FNG Group Pty Ltd Enterprise Agreement 2018 (the Agreement).

[2] The Form F24B - Application for termination of an enterprise agreement after the nominal expiry date (Form F24B) states that the business name of FNG Group Pty Ltd changed to Regional Home Builders Pty Ltd following rebranding. The Form F24B also states that 23 employers are covered by the Agreement. In communication to the Applicant, my Chambers clarified that this was an error and that there are 23 employees covered by the Agreement. There are no employee organisations covered by the Agreement and the Agreement has passed its nominal expiry date of 13 May 2023. In addition to the Form 24B, the Applicant also filed with the Commission a Form F24C - Declaration in relation to the termination of the enterprise agreement (Form 24C Statutory Declaration) made by Mr Justin Ferguson.

[3] I issued Directions for the filing of material in respect of the further conduct of the application. These Directions required the Applicant to firstly file a document containing a clause-by-clause comparison between the terms of the Agreement as compared to the terms in the Building and Construction General On-site Award 2010, Road Transport and Distribution Award 2010 and Manufacturing and Associated Industries and Occupations Award 2010 (collectively, the 2010 Awards). These Directions also gave the Applicant an opportunity to file any material addressing the matters set out in s.226 of the Act.

[4] The Directions then required that the Employer was to provide a copy of these documents, as well a copy of the Form 24B and Form 24C Statutory Declaration to all employees via email. A copy of these documents, as well as a copy of the Directions, were also required to be placed on the noticeboard at the Applicant's workplace. The employees then had an opportunity to file with my Chambers any material that they would like the Commission to consider relevant to ss.226 and 226A of the Act.

[5] In the conduct of the application, on 9 July 2025, the Applicant filed a comparison document (Clause Comparison Document) outlining whether the terms of the Agreement were more beneficial, less beneficial or neutral in comparison to the terms of the Building and Construction General On-site Award 2020, Road Transport and Distribution Award 2020 and Manufacturing and Associated Industries and Occupations Award 2020 (collectively, the 2020 Awards).

[6] My Chambers did not receive any material from employees. I conducted a Case Management Conference with the Applicant to discuss the conduct of the matter, and a subsequent Mention on 17 October 2025. I considered it appropriate to determine the application on the papers based on the material before the Commission.

226 Terminating an enterprise agreement after its nominal expiry date

(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

[7] I am satisfied that the Agreement has passed its nominal expiry date and that the Applicant has standing to make the application as an employer covered by the Agreement.

[8] Pursuant to s.226(1)(a) of the Act, the Applicant submits that the continued operation of the Agreement would be unfair for the employees covered by the Agreement. In its Form F24C Statutory Declaration, Mr Ferguson states that the Agreement was made under past industry standards and that many of the entitlements no longer reflect current market rates, which therefore places employees at a disadvantage.

[9] Pursuant to s.226(1)(c) of the Act, the Applicant also states that due to reduced entitlements in the Agreement, the Applicant's ability to recruit trade qualified staff is hindered. It says that by terminating the Agreement, the business would be 'in line' with other construction businesses. The Applicant concedes, however, that there is no significant threat to the viability of the business.

[10] Clause 5 of the Agreement incorporates the 2010 Awards such that the express terms of the Agreement are supplementary to, and to be read in conjunction, with the 2010 Awards. The clause further states that where an express term of the Agreement is inconsistent with the Award, the express term of the Agreement will prevail to the extent of any inconsistency.

[11] The Clause Comparison Document filed with the Commission outlines that the following clauses in the Agreement are less beneficial when compared to their counterparts in the 2020 Awards. I have considered each clause in turn and note the following with respect to each clause.

• Abandonment of employment - the Agreement specifies that an employee's absence for a continuous period of three working days without the consent of the Employer and without notice to the Employer shall be prima facie evidence that the employee has abandoned their employment and that, where an employee is absent for a period of seven days without reasonable cause, the employee will be deemed to have abandoned their employment. No such equivalent clause exists in the 2020 Awards.

• Summary dismissal - the Agreement specifies that summary dismissal may occur if an employee behaves in a manner deemed to constitute serious misconduct. The Applicant submits that the clause is less beneficial as the 'NES stipulate[s] dismissal processes.' However, an employment may be summarily dismissed for serious misconduct in accordance with s.123(1)(b) of the Act. I am not of the view that this clause is less beneficial than either the NES or the 2020 Awards.

• Hours of work - the Agreement specifies that ordinary hours are between 6AM and 6PM, Monday to Friday. The Manufacturing and Associated Industries and Occupations Award 2020 includes the same span of ordinary hours, whereas the Road Transport and Distribution Award 2020 specifies that ordinary hours are to be worked between 5:30AM and 6:30PM. The Building and Construction General On-site Award 2020 specifies that ordinary hours of work are between 7AM and 6PM, Monday to Friday. I accept that the increased span of hours when compared with the Building and Construction General On-site Award 2020 is less beneficial in this respect.

• Stand down - the Agreement specifies that the employer may stand down an employee and deduct payment for any day or part thereof upon which the employee cannot usefully be employed because of industrial action or participation in industrial action or a stoppage of work for any cause which the employer is not reasonable responsible. The Applicant submits that the clause is outdated and could be challenged. Section 524 of the Act specifies the circumstances in which an employee may be stood down. This section specifies that an employee may be stood down due to industrial action, a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown and a stoppage of work for any cause which the employer cannot reasonably be held responsible. I note that the Agreement allows for the Applicant to stand down an employee in circumstances where the employee cannot usefully be employed due to industrial action or participation in industrial action. I note that s.524(1)(a) of the Act is more limited and that an employee cannot be stood down where there is industrial action organised and engaged in by the employer. I therefore accept that the clause in the Agreement may be subject to challenge, but I cannot say that it is less beneficial if it were challenged.

• Wage increases - the Agreement provides for wage increases between 2018 to 2021 in line with the annual wage review increase. I note that s.206 of the Act will operate in such a way that the base rate of pay payable to the employee under the Agreement must not be less than the Moden Award rate, and that if the Agreement rate is less than the 2020 Awards rates, then the Agreement rates would be equal to the Awards rate.

• Fares and travelling allowance - the Agreement specifies that an employee is entitled to a travel allowance of $17.50 per day in circumstances where the employee starts and finishes work on a construction site, or is required to perform prefabricated work in an open yard and is then required to erect or fix on-site. The Building and Construction General On-site Award 2020 specifies that an employee is entitled to a travel allowance of $21.94 per day in the same circumstances. The Road Transport and Distribution Award 2020 specifies that an employees engaged on duty but unable to return home must be paid personal expenses reasonably incurred of an amount at least $40.08 per day, whereas the Manufacturing and Associated Industries and Occupations Award 2020 specifies that where an employee is required to start/ finish at a job away from the employer's usual place or work, they must be paid for all time reasonably spent reaching or returning from a job in excess of the time spent travelling to and from an employee's usual place of residence, and must also be paid for any fares reasonably incurred by the employee. I accept that for employees covered by the Building and Construction General On-site Award 2020, the travel allowance is less beneficial under the Agreement.

• Living away from home allowance - the Agreement specifies that employees who are usually employed on a job at such a distance from their usual places of residence that they cannot reasonably return to that residence each night will either be provided adequate meals and accommodation, or in circumstances where their meals are not supplied that they have accommodation, an allowance of $50 a day or the Applicant may elect to pay the employee the living away from home allowance as prescribed the Award. I note that the Road Transport and Distribution Award 2020 and the Manufacturing and Associated Industries and Occupations Award 2020 do not contain a living away from home allowance but that the Building and Construction General On-site Award 2020 contains a living away from allowance which is more beneficial than the Agreement clause.

[12] It's the Applicant's submission that the other clauses in the Agreement are either the same or neutral, when compared to the relevant Awards. Further, it was Mr Ferguson's submission that the Agreement creates confusion for employees because the Agreement has no practical relevance to the employees' wages and conditions of employment.

[13] The Applicant is supportive of the termination of the Agreement and says that the 23 employees currently covered by the Agreement are paid significantly above the rates of pay contained in the Agreement, and the relevant Awards.

[14] At the Mention I conducted, it was Mr Ferguson's submission that the Building and Construction General On-site Award 2020 is the underpinning Award for 22 employees, the Manufacturing and Associated Industries and Occupations Award 2020 covers one employee, and there are no employees covered by the Road Transport and Distribution Award 2020.

[15] There are no employee organisations covered by the Agreement and no employee views have been received by the Commission.

[16] Having considered the submissions of the Applicant and having undertaken an assessment of the Agreement terms and conditions as against the relevant Awards, I am satisfied that the continued operation of the Agreement would be unfair to employees because of the reduced conditions in the Agreement when compared to the relevant Awards, particularly when compared to the Building and Construction General On-site Award 2020, which would apply to 22 of the 23 employees of the Applicant. I do not consider there to be any other relevant matters to which I should have regard.

[17] I am satisfied that it is appropriate in all the circumstances to terminate the FNG Group Pty Ltd Enterprise Agreement 2018. Pursuant to s.227 of the Act, the termination of the Agreement will take effect on and from 30 October 2025. An Order to this effect will be issued with this Decision.[1]

[1] PR793210.

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