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

[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

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

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

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

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

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.

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.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Overhead Maintenance Services Pty Ltd. The union sought to have an enterprise agreement entered into between the parties recognised as a registered agreement. The dispute arose from disagreements over the terms and conditions outlined in the proposed agreement, which covered the period from 2023 to 2026. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal criteria for registration, including compliance with the relevant provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement satisfied the requirements for registration as set out in the Fair Work Act. This involved assessing whether the agreement provided for a fair and efficient workplace, contained necessary protections for employees, and adhered to procedural fairness standards. Additionally, the Commission needed to examine if the agreement had been genuinely negotiated between the parties and if the union had adequately represented its members during the negotiation process.

In reaching its decision, the Commission considered the evidence and submissions from both parties. It examined the content of the proposed agreement to ensure it addressed the necessary terms and conditions, including wages, working hours, and other employment-related matters. The Commission also reviewed the processes that had been followed to negotiate and finalise the agreement, confirming that the union had acted in the best interests of its members and that the agreement reflected genuine negotiations. Ultimately, the Commission found that the agreement met all the statutory requirements for registration and was thus compliant with the Fair Work Act.

Consequently, the Fair Work Commission determined that the enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Overhead Maintenance Services Pty Ltd for the period 2023-2026 was eligible for registration. This decision was made on the basis that the agreement was fair, efficiently negotiated, and provided adequate protections for employees. The final order was that the enterprise agreement be registered as a valid and enforceable instrument under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established