AC Electrics NSW Pty Ltd

[2025] FWCA 1658

[2025] FWCA 1658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

AC Electrics NSW Pty Ltd

(AG2025/1265)

AC ELECTRICS NSW PTY LTD ENTERPRISE AGREEMENT 2025

Electrical contracting industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 16 MAY 2025

Application for approval of the AC Electrics NSW Pty Ltd Enterprise Agreement 2025

Introduction

1. AC Electrics NSW Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AC Electrics NSW Pty Ltd Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Electrical, Electronic and Communications Contracting Award 2020 (the Award).

Agreement Explanation

1. Question 22 of the Form F17 provides that on 1 April 2025, an email was sent to all employees that the bargaining process would begin, and a copy of the Agreement was issued to all employees. On 3 April 2025, a follow up email was sent with the Agreement and an ‘Understanding Enterprise Agreements’ document. Question 24 provides the same information provided in Question 22. In the Form F17, the Employer has simply noted that a copy of the Agreement was sent to employees. Information regarding how the Agreement terms have been explained to employees has not been provided. The Employer subsequently provided a copy of a discussion paper and timeline. I am satisfied having regard to these documents that the requirements of s. 180(5) of the Act have been met.

Sufficient Interest and Sufficiently Representative

1. The F17 Declaration submitted by the Employer did not include 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.

1. The Employer subsequently provided submissions which included information relevant to the issue of sufficient interest and sufficiently representative. 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.

Reasonable Opportunity to Vote

1. Question 25 of the Form F17 provides that an email was sent to employees on 23 April 2025 with the updated Agreement and vote information. As voting commenced on 30 April 2025, employees were not notified of the vote seven clear days prior to the vote. I note that all of the employees covered by the Agreement exercised a vote in relation to the matter and I am therefore satisfied the employees were given a reasonable opportunity to vote.  

Consultation Term

1. The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model consultation term is attached as Annexure A of the Agreement.

Workplace Delegates’ Rights Term

1. The Agreement did not contain a workplace delegates’ rights term, as required by s.205A(1) of the Act. The Employer provided undertakings to address this issue. The workplace delegates’ rights term from the Award will be taken to be a term of the Agreement Pursuant to s.205A(2) of the Act and is attached as Annexure B of the Agreement.

National Employment Standards (NES) issues

1. The Commission raised the following issues with the Employer in relation to the NES:

Compassionate leave

1. Clause 7.4.1 of the Agreement provides for compassionate leave, however, is silent regarding stillbirth/miscarriage and as such may be read as being exclusive of these two occasions. This is inconsistent with s.104 of the Act.

Public holidays

2. Clause 7.8.4 of the Agreement provides that it is expected that employees will be available to work on public holidays as required which may be inconsistent with s.114 of the Act which provides that an employee is entitled to be absent from their employment on a public holiday and that the employer may request an employee to work on public holiday if the request is reasonable.

Family and domestic violence leave

3. Clause 7.10.3 of the Agreement provides for 5 days of unpaid family and domestic violence leave. This is inconsistent with s.106A of the Act, which provides for 10 days of paid family and domestic violence leave in a 12-month period.

Better off Overall Test (BOOT) Issues

1. The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:

1. The Agreement did not provide separate pay rates for junior and adult apprentices. As such, when comparing the Agreement apprentice pay rates to the adult apprentice rates within the Award, they fell between 29.19% below and 5.07% below the Award.

2. The Agreement appeared to provide conflicting provisions regarding when weekly overtime penalties are to be paid. Clause 6.3.3 provides that the first additional hour worked between 6am and 6pm Monday to Friday by full-time employees beyond 40 hours shall be paid at ordinary time rates. The table provided in clause 6.3.6 provides that additional hours beyond 40 hours per week are paid a loading of 50% on the ordinary time rates, while clause 6.3.5 provides that all additional hours worked by a full-time employee beyond 46 hours per week shall be classed as overtime. As such, it was unclear when weekly overtime is triggered.

3. The Agreement at clause 4.1 provides that part-time employees are engaged to work less than 38 hours per week but may work up to 38 hours plus reasonable additional hours. Clause 10 of the Award provides that a part-time employee is engaged for a constant number of hours less than 38 per week and an employer must inform a part-time employee upon engagement of the ordinary hours of work and start and finish times. The Agreement appears to provide part-time conditions that mirror full-time employment.

4. The Agreement is silent regarding part-time employees being entitled to overtime when working in excess of their agreed hours. Clause 10.6 of the Award provides that if a part-time employee is required to work outside of their guaranteed hours overtime will apply. As the Agreement does not stipulate the same part-time safeguards as provided in the Award, this may be a BOOT concern particularly for lower paid employees and apprentices.

Section 190 Undertakings

1. The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached as Annexure C. 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.

Section 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2025. The nominal expiry date of the Agreement is 16 May 2029.

DEPUTY PRESIDENT

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