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

[2025] FWCA 838

[2025] FWCA 838

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

(AG2025/519)

KELLY ELECTRICAL PTY LTD & ETU POWERLINE GREENFIELDS AGREEMENT 2023-2026

Electrical power industry
COMMISSIONER REDFORD	MELBOURNE, 11 MARCH 2025

Application for approval of the Kelly Electrical Pty Ltd & ETU Powerline Greenfields Agreement 2023-2026

1. An application has been made for approval of an enterprise agreement known as the Kelly Electrical 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 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and concerns Kelly Electrical Pty Ltd (Kelly Electrical).

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).

1. As the Agreement does not contain a workplace delegates rights term, pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Electrical Power Industry Award 2020 is taken to be a term of the Agreement. 

1. Clause 36 of the Agreement deals with consultation, but does not provide that in respect to changes to employees’ regular roster or ordinary hours of work, the employer is required to provide information to the employees about the change and invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities) and to consider any views given by the employees about the impact of the change.

1. Accordingly, as the consultation term in the Agreement does not comply with the requirements of s 205(1A) of the Act, the model consultation term is taken to be a term of the agreement[1].

1. On 20 February 2025 a Full Bench of this Commission determined a model consultation term which was expressed to operate from 26 February 2025[2]. The determination was made pursuant to s 205(3) of the Act, which was inserted into the Act by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (the amending Act).

1. Clause 107 of Schedule 1 of the Act provides as follows:

107 Model terms and enterprise agreements

(1) Despite the amendments made by Part 5 of Schedule 1 to the amending Act, sections 202, 205 and 737, as in force immediately before the commencement of that Part, continue to apply in relation to an enterprise agreement if:

(a) before that commencement, the employer concerned asks the employees to approve the agreement by voting for it; and

(b) by that vote, the employees approve the agreement; and

(c) the FWC approves the agreement.

(2) In deciding, after the commencement of that Part, whether to approve the agreement mentioned in subclause (1) (in that form), the FWC must disregard the amendments made by that Part.

1. This agreement is a greenfields agreement and accordingly, there was no vote among employees of the kind described in clause 107 of Schedule 1 of the Act. The agreement was “made” (within the meaning of s 182(4) of the Act) on 28 February 2025 when it was signed by the CEPU (having been signed by Kelly Electrical on 25 February 2025).

1. On this basis, I can see no reason why the consultation term now prescribed as a result of the Full Bench’s determination would not apply, and I therefore note that the model consultation term as set out in the Fair Work (Model Terms) Determination 2025 is taken to be a term of the agreement.

1. Clause 6 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (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 27.15 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.

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

[1] Fair Work Act 2009 s 205(2); see Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206 [79] per Rares and Logan JJ

[2] Fair Work (Model Terms) Determination 2025 – Model Consultation term for enterprise agreements, Schedule 2; Model terms for enterprise agreements and copied State instruments [2025] FWCFB 39

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