Application for approval of the Trafman Labour Hire Collective Agreement 2025-2028

[1] Trafman Labour Hire Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Trafman Labour Hire Collective Agreement 2025-2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by the Building and Construction General On-site Award 2020 (the Award).

[3] The Commission identified that 102 casual employees (out of 128 employees) were included by the Employer as employees eligible to participate in the vote on the Agreement. The Employer provided submissions that the casual employees invited to vote were all employed by the business on a regular and systematic basis and rostered to work during the access period.

[4] I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others,[1] the requirement in s.181(1) of the Act has been met.

Sufficient Interest and Sufficiently Representative

[5] The Form F17B submitted by the Employer did not include adequate information about whether employees have a sufficient interest in the terms of the Agreement or were sufficiently representative of the employees it intends to cover.

[6] The Employer subsequently provided submissions which included information about each of the roles that employees are employed in under the Agreement and the number of employees engaged in those roles. Based on those submissions I am satisfied that the employees requested to approve the Agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative.

[7] The Agreement does not contain a workplace delegates' right term as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates' right term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates' rights term can be found in Schedule 2.

Inconsistencies with the National Employment Standards (NES)

[8] The Commission raised the following issues with the Employer as to whether some aspects of the Agreement are inconsistent with the NES:

1. Clause 14.1(e) states an employee will be granted paid personal/carer's leave up to the limit of his/her accrued entitlement if he/she is absent from work due to personal illness or injury subject to the employee notifying the company within 24 hours where practicable of the commencement of the personal/carer's leave. This may be inconsistent with s.107(2) of the Act which provides for notice to be given as soon as reasonably practicable (which may be a time after the leave has started).

2. Clause 21.1.1(c) appears to provide that redundancy does not apply to apprentices, inconsistent with s.123(1)(d) of the Act which does not preclude apprentices from the entitlement to redundancy provided by s.119.

Better off Overall Test (BOOT) Issue - Apprentice Rates

[9] Clause 21.1.1(c) refers to apprentices, however, rates of pay have not been provided. The Employer submitted that no apprentices are currently engaged under the terms of the Agreement and there is no intention to engage apprentices during the life of the Agreement.

[10] The Employer provided written undertakings to address the above NES and BOOT issues. A copy of the undertakings is attached in Schedule 1. 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. The undertakings are taken to be a term of the Agreement.

[11] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2025. The nominal expiry date of the Agreement is 30 June 2028.

[1] [2019] FWCFB 7599

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