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austlii:cth/FWCA/2025/1796
General information, not legal advice.
FWCA
2025-05-28
Original judgment source is linked above.
s 185 - Enterprise agreement
Tutt Bryant Group Limited T/A Tutt Bryant Heavy Lift & Shift
TUTT BRYANT HEAVY LIFT & SHIFT SPECIALISED LIFTING AND TRANSPORT OPERATIONS (W.A) ENTERPRISE AGREEMENT 2025
Application for approval of the Tutt Bryant Heavy Lift & Shift Specialised Lifting and Transport Operations (W.A) Enterprise Agreement 2025.
[1] Tutt Bryant Group Limited trading as Tutt Bryant Heavy Lift & Shift (the Applicant) has made an application for the approval of an enterprise agreement known as the Tutt Bryant Heavy Lift & Shift Specialised Lifting and Transport Operations (W.A) Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
[2] On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[3] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):
(a) Clause 17.2 states that the roster for a distant worker will generally guarantee 60 hours per week. This appears to consider that employees may be required to work more than 38 hours in one week which would be inconsistent with s 62(1) of the Act.
(b) Clause 36 provides for carer's leave for when a member of the employee's immediate family or household is ill or injured. This may be inconsistent with s 97(b) of the Act which provides carer's leave for those reasons as well as for an unexpected emergency affecting the member.
(c) Clause 37 provides for the cashing out of personal leave but does not appear to require that each agreement to cash out leave be a separate agreement in writing. This may be inconsistent with s 101 of the Act.
[4] However, I am satisfied that under clause 5 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[5] The Agreement was approved on 28 May 2025 and, in accordance with s 54, will operate from 4 June 2025. The nominal expiry date of the Agreement is 28 May 2028.
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