Condex Services Pty Ltd

[2024] FWCA 1395

[2024] FWCA 1395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Condex Services Pty Ltd

(AG2024/1017)

CONDEX SERVICES PTY LTD ESSO OFFSHORE AND ONSHORE ELECTRICAL MAINTENANCE SERVICES AGREEMENT 2023

Oil and gas industry
COMMISSIONER MIRABELLA	MELBOURNE, 2 MAY 2024

Application for approval of the Condex Services Pty Ltd Esso Offshore and Onshore Electrical Maintenance Services Agreement 2023.

1. Condex Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Condex Services Pty Ltd Esso Offshore and Onshore Electrical Maintenance Services Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17B provides that the notification time for the Agreement was 26 April 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to approval applications where the agreement was made before 6 June 2023. Question 28.2 of the Form F17B provides that the Agreement was made on 16 March 2024.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

1. The Employer provided the notice of employee representational rights to employees later than 14 days after the notification time for the Agreement. Further, the Employer did not take all reasonable steps to ensure that a copy of the incorporated Electrical, Electronic and Communications Contracting Award 2020 was given to employees during the access period for the Agreement or that employees had access to a copy of this award throughout the access period. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural errors made in relation to the requirements in sections 173(3) and 180(2) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the FW Act.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

• Clause 39: Maximum weekly hours

• Clause 43: Annual leave

1. However, noting clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 2 May 2024 and, in accordance with s.54, will operate from 9 May 2024. The nominal expiry date of the Agreement is 1 March 2027.

COMMISSIONER

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