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

[2025] FWCA 35

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

(AG2024/4985)

THE UTILITY COMMISSIONING SERVICES PTY LTD &ETU POWERLINE ENTERPRISE AGREEMENT 2023-2026

Electrical power industry
COMMISSIONER REDFORD	MELBOURNE, 6 JANUARY 2025

Application for approval of the Utility Commissioning Services Pty Ltd &ETU Powerline Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Utility Commissioning 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 (128V) (CEPU). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights distributed to employees on 1 November 2024 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 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 after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

Consideration

Subject to the matters referred to above, 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 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.

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 case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Utility Commissioning Services Pty Ltd and ETU Powerline (the Employers). The Union sought approval for the Utility Commissioning Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026, which was intended to regulate employment conditions for certain employees of the Employers. The application was heard in the Fair Work Commission.

The primary legal issue the court needed to decide was whether the proposed enterprise agreement was in compliance with the relevant industrial legislation and if it met the criteria for approval under the Fair Work Act 2009. The Union argued that the agreement was fair and reasonable, while the Employers contended that certain provisions were unfair and not in line with the statutory requirements.

The Fair Work Commission assessed the agreement based on several factors, including the agreement's coverage, the process through which it was negotiated, and whether it contained provisions that were contrary to public policy or contrary to the provisions of the Fair Work Act. The Commission concluded that the agreement was fair and reasonable, taking into account the nature of the work, the bargaining power of the parties, and the overall fairness of the terms. The court approved the application for the agreement's registration, stating that it met the criteria for approval under the relevant industrial legislation.

In light of the decision, the Fair Work Commission approved the registration of the Utility Commissioning Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026, effective from the date of the decision. The agreement will now govern the employment conditions of the employees covered by the agreement, subject to its terms and any subsequent modifications or variations that may be agreed upon by the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established