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

[2025] FWCA 1089

[2025] FWCA 1089

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

(AG2025/768)

COMTEX ELECTRICAL PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2025

Electrical contracting industry
COMMISSIONER REDFORD	MELBOURNE, 31 MARCH 2025

Application for approval of the Comtex Electrical Pty Ltd & ETU NSW/ACT Construction Union Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Comtex Electrical Pty Ltd & ETU NSW/ACT Construction Union Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and concerns Comtex Electrical Pty Ltd (the Company).

1. 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)(a) of the Act, I am satisfied that the 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 it. I am also satisfied that it is in the public interest to approve the Agreement as required by s 187(5)(b).

Interaction with the National Employment Standards

1. Clause 16(a) of the Agreement provides that where the National Employment Standards (NES) provides a benefit, condition or entitlement more favourable in a particular respect than contained in the Agreement, the Agreement shall be “overridden” to the extent of any less favourable inconsistency. I take this to mean that in those circumstances, the NES provision will apply. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement: 

a.Clause 25 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

b.Clause 43(a)(iii) Clause 43(a)(iii) of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment. Section 120 of the Act deals with circumstances in which a variation to redundancy pay can be sought where an employer obtains other acceptable employment for an employee. In particular, an application is required to be made to the Commission for a determination. The operation of clause 16(a) of the Agreement – the NES precedence clause – is therefore likely to mean that despite clause 43(a)(iii), the amount of redundancy or severance pay cannot be varied without compliance with s 120 of the Act.

Consideration

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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