Eptec Pty Ltd

[2025] FWCA 811

[2025] FWCA 811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Eptec Pty Ltd

(AG2025/457)

INFRASTRUCTURE SOLUTIONS ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER SLOAN	SYDNEY, 5 MARCH 2025

Application for approval of the Infrastructure Solutions Enterprise Agreement 2024

1. Eptec Pty Ltd t/as Infrastructure Solutions has applied for approval of an enterprise agreement known as the Infrastructure Solutions Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009. The Agreement is a single enterprise agreement.

2. I have a minor concern with the notice of employee representational rights that was provided to employees. It gave notice that Eptec was bargaining for an enterprise agreement “which is proposed to cover employees that perform remediation work on sites for Eptec Pty Ltd…in the classifications contained in the Agreement”. The NERR was provided to employees on 22 October 2024. The Agreement was provided to employees on 4 February 2025. At least as a matter of logic, the employees cannot have known what “classifications [were] contained in the Agreement” without having seen it. That said, the Agreement appears to be a replacement for an existing enterprise agreement that applies to the employees. On that basis, I consider this to be a minor procedural or technical error of the nature contemplated by s 188(5) of the Act. I am satisfied that the employees are not likely to have been disadvantaged by the error. As a result, I will disregard it.

3. The Agreement does not in direct terms contain a definition of shiftworker “for the purposes of the National Employment Standards”, as required by s 196(2) of the Act. However, clause 20.3 of the Agreement sets out the rate at which annual leave will accrue for “Continuous Shift Workers”, which is consistent with the entitlement in s 87(1)(b) of the Act. That clause can be read with clause 31(b) which defines “Continuous shift work”. I am satisfied that the Agreement defines or describes employees as shiftworkers for the purposes of the NES. (I am mindful that in its declaration in support of the application, Eptec stated that it does not roster employees on continuous shifts.)

4. Clause 21 of the Agreement is titled Personal Leave. Clause 21.3 requires an employee to inform their supervisor “immediately” if they will be absent on personal or carer’s leave. However, s 107(2)(a) of the Act provides that an employee must give notice “as soon as practicable (which may be a time after the leave has started)”. On its terms, the Agreement imposes a more onerous obligation on employees. That said, clause 7 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that clause 21.3 is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.

5. Having regard to these matters, and the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application have been met.

6. The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 12 March 2025. The nominal expiry date of the Agreement is 5 March 2029.

COMMISSIONER

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