Australian Fibreoptic Services Pty Ltd T/A Australian Fibreoptic Solutions

[2024] FWCA 136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Fibreoptic Services Pty Ltd T/A Australian Fibreoptic Solutions

(AG2023/5123)

AUSTRALIAN FIBREOPTIC SERVICES PTY LTD AND CEPU ELECTRICAL DIVISION CROSS RIVER RAIL PROJECT AGREEMENT 2020-2024

Electrical contracting industry
COMMISSIONER THORNTON	ADELAIDE, 11 JANUARY 2024

Approval decision – Greenfields Agreement - Application for approval of the Australian Fibreoptic Services Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024

An application has been made for approval of a greenfields agreement known as the Australian Fibreoptic Services Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024 (the Agreement). The application was made by Australian Fibreoptic Services Pty Ltd T/A Australian Fibreoptic Solutions pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a greenfields agreement made pursuant to s.172(2)(b) of the Act.

I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met.

In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under the Agreement. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the CEPU and that the Agreement covers this organisation.

I note that clauses 6.3.1 with respect to compassionate leave and clause 6.7.8 as it relates to the substitution of public holidays may be inconsistent with the National Employment Standards. As clause 1.7.1 2 of the Agreement provides that to the extent of any inconsistency, and where the NES provides a greater benefit, the NES will prevail, I am confident that NES entitlements will be afforded to employees.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 2024. The nominal expiry date of the Agreement is 31 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application for approval of an enterprise agreement between Australian Fibreoptic Services Pty Ltd and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The agreement in question was the Australian Fibreoptic Services Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024. The central legal issue for the Commission to determine was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to assess whether the CEPU had the requisite representation rights and whether it was in the public interest to approve the agreement. Additionally, the Commission had to consider potential inconsistencies between the agreement and the National Employment Standards.

The Commission found that all statutory requirements for the approval of the agreement were satisfied. It was determined that the CEPU was entitled to represent the industrial interests of a majority of the employees affected by the agreement, as mandated by section 187 of the Fair Work Act. Furthermore, the Commission concluded that approving the agreement was in the public interest. Although certain clauses in the agreement, such as those concerning compassionate leave and the substitution of public holidays, appeared to conflict with the National Employment Standards, the agreement included a clause ensuring that the NES would prevail where it provided greater benefits. This led the Commission to be confident that employees would receive the protections afforded by the NES.

In light of the findings, the Fair Work Commission approved the Australian Fibreoptic Services Pty Ltd and CEPU Electrical Division Cross River Rail Project Agreement 2020-2024. The agreement was set to operate from 18 January 2024, with a nominal expiry date of 31 January 2025. This decision ensures that the terms of the agreement will govern the employment conditions of the relevant employees, provided they align with or exceed the protections offered by the National Employment Standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established