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

[2025] FWCA 981

[2025] FWCA 981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

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

(AG2025/676)

OPSCON PTY LTD & ETU NSW/ACT HVAC UNION AGREEMENT 2024-2026

Electrical contracting industry
COMMISSIONER REDFORD	MELBOURNE, 21 MARCH 2025

Application for approval of the Opscon Pty Ltd & ETU NSW/ACT HVAC Union Agreement 2024-2026

1. An application has been made for approval of an enterprise agreement known as the Opscon Pty Ltd & ETU NSW/ACT HVAC Union Agreement 2024-2026 (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 (CEPU) and concerns an Agreement proposed to cover Rise Group Pty Ltd (the Company) and its employees. The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights 

1. The Notice of Employee Representational Rights (NERR) distributed to employees on 11 November 2024 appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

Interaction with the National Employment Standards

1. Clause 16(b) of the Agreement provides that  where the National Employment Standards (NES) provides, or is varied to provide, a benefit, condition, or entitlement more favourable in a particular respect than that contained in this Agreement, the benefit or condition or entitlement contained in this Agreement shall be overridden to the extent of any less favourable inconsistency with the NES (NES precedence clause). 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 43 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(b) of the Agreement – the NES precedence clause – is therefore likely to mean that despite clause 43, the amount of redundancy or severance pay cannot be varied without compliance with s 120 of the Act.

Consideration

1. 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.

1. The CEPU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CEPU.

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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