Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2025] FWCA 2219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2025/1938)

DISTRO-TEX PTY LTD & ETU POWERLINE GREENFIELDS AGREEMENT 2023-2026

Electrical power industry
COMMISSIONER ROGERS	ADELAIDE, 4 JULY 2025

Application for approval of the Distro-Tex Pty Ltd & ETU Powerline Greenfields Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Distro-Tex Pty Ltd & ETU Powerline Greenfields Agreement 2023-2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) (the Applicant).

This is a greenfields agreement that meets the requirements of 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 has been met. In accordance with s 187(5) of the Act, I am satisfied that the ETU 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 it, and that it is in the public interest to approve the Agreement.

I note the Agreement was made with the ETU and the Agreement covers that organisation under section 53(2)(b).

I note that the following clause in the Agreement appears to be inconsistent with the National Employment Standards (the NES):
· Clause 29(k) states ‘if the employee fails to give notice the employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice.’ The Agreement does not specify that the employer will not withhold from NES entitlements.

However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

The Agreement is approved and will operate in accordance with s.54 of the Act from 11 July 2025. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Distro-Tex Pty Ltd, with the union seeking approval of a new enterprise agreement for the period 2023 to 2026. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. The union applied for the commission to approve the Distro-Tex Pty Ltd & ETU Powerline Greenfields Agreement 2023-2026, which was intended to regulate employment terms and conditions for certain employees of the company.

The central legal issue was whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the commission needed to determine if the agreement was a genuine enterprise agreement, fairly representing the employees, and providing a safety net that met or exceeded the national minimum terms and conditions. The union argued that the agreement was bona fide and met all legislative requirements, while any objections were minor and did not undermine its validity.

The commission found that the agreement was a genuine enterprise agreement and was representative of the employees. The commission noted that while there were some minor procedural issues, these did not detract from the overall validity of the agreement. The commission also determined that the agreement provided a safety net that met or exceeded the national minimum terms and conditions, and therefore met the legislative criteria for approval. Consequently, the commission approved the agreement.

The Fair Work Commission approved the Distro-Tex Pty Ltd & ETU Powerline Greenfields Agreement 2023-2026, effective from the date of the decision. The commission found that the agreement was a genuine enterprise agreement that met all legislative criteria for approval, including adequately representing the employees and providing a safety net that met or exceeded the national minimum terms and conditions. The commission also noted that any minor procedural issues did not detract from the overall validity of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established