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

[2025] FWCA 670

[2025] FWCA 670

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

(AG2025/342)

OVER HEAD MAINTENANCE SERVICES PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2023-2026

Electrical power industry
COMMISSIONER REDFORD	MELBOURNE, 20 FEBRUARY 2025

Over Head Maintenance Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026

1. An application has been made for approval of an enterprise agreement known as the Over Head Maintenance Services Pty Ltd & ETU Powerline Enterprise 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) and relates to Over Head Maintenance Services Pty Ltd (the Company). The Agreement is a single enterprise agreement.

Late lodgement

1. Section 185(3)(a) of the Act provides that an application for approval of an agreement must be made no later than 14 days after the agreement being made. The Agreement was made on 28 January 2025 and the application lodged on 13 February 2025, 16 days after the Agreement was made and therefore 2 days late. I have considered the explanation provided for the late lodgement and am satisfied in all the circumstances that it is fair to extend the period to the date on which the application was lodged.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed by the Company was not in the prescribed form, as the pre-reform version has been used. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

Interaction with the National Employment Standards

1. Clause 6 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement and where the NES is more beneficial in a particular respect to an employee, then the NES shall prevail to the extent of the inconsistency (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.

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 ETU 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 ETU.

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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