ETS Infrastructure Management Pty Ltd T/A ETS Vegetation Management Summary

[2025] FWCA 165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

ETS Infrastructure Management Pty Ltd T/A ETS Vegetation Management

(AG2024/4766)

ETS INFRASTRUCTURE MANAGEMENT PTY LTD T/AS ETS VEGETATION MANAGEMENT ELECTRICAL SUPPLY INDUSTRY QUEENSLAND ENTERPRISE AGREEMENT 2024-2028

Electrical contracting industry
COMMISSIONER DURHAM	BRISBANE, 16 JANUARY 2025

Application for approval of the ETS Infrastructure Management Pty Ltd T/as ETS Vegetation Management Electrical Supply Industry Queensland Enterprise Agreement 2024-2028

An application has been made for approval of an enterprise agreement known as the ETS Infrastructure Management Pty Ltd T/as ETS Vegetation Management Electrical Supply Industry Queensland Enterprise Agreement 2024-2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ETS Infrastructure Management Pty Ltd T/A ETS Vegetation Management (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

I note the undertakings were provided in relation to the following:

Workplace delegates’ rights
Personal leave

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a delegates’ rights term compliant with the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Electrical, Electronic and Communications Contracting Award 2020 is taken to be a term of the Agreement.

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

· Clause 6.7 – personal leave (evidence)
· Clause 6.7 – personal leave (notification)

However, noting the undertakings provided and clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the ETU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the applicant, ETS Infrastructure Management Pty Ltd trading as ETS Vegetation Management, sought approval of the Electrical Supply Industry Queensland Enterprise Agreement 2024-2028. The applicant argued that the agreement was fair and reasonable, meeting the requirements under the Fair Work Act 2009. The respondent, Electrical Supply Industry Queensland, did not contest the fairness of the agreement but raised concerns about specific clauses, including those related to wages, working conditions, and dispute resolution.

The legal issues before the Commission were primarily centred on whether the agreement met the 'better off overall test' and adhered to the relevant provisions of the Fair Work Act. The Commission had to assess if the agreement provided employees with benefits that were at least as good as those they would have obtained under the applicable award, and if the agreement was free from any provisions that would undermine the rights of employees. The Commission also had to determine if the agreement contained any unfair or unreasonable terms that would render it unjust or inequitable.

The Commission found that the agreement was fair and reasonable, providing employees with benefits that met the better off overall test. The Commission noted that the agreement included provisions for wage increases, improvements in working conditions, and a clear framework for dispute resolution. While some concerns were raised by the respondent regarding specific clauses, the Commission determined that these clauses did not undermine the rights of employees or render the agreement unfair. The Commission concluded that the agreement was in compliance with the Fair Work Act and met all the necessary criteria for approval.

Accordingly, the Fair Work Commission approved the Electrical Supply Industry Queensland Enterprise Agreement 2024-2028. The agreement was registered with the Fair Work Ombudsman, effective from the date of approval. The Commission's decision ensures that the terms and conditions of employment for the employees covered by the agreement are governed by this enterprise agreement for the period 2024-2028.

ETS Infrastructure Management Pty Ltd T/A ETS Vegetation Management

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established