O.P. Industries Pty. Ltd.

[2024] FWCA 3629

[2024] FWCA 3629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

O.P. Industries Pty. Ltd.

(AG2024/3601)

Technical services
COMMISSIONER THORNTON	ADELAIDE, 18 OCTOBER 2024

Application for approval of the O.P. Industries Pty Ltd Service Department (Adelaide) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the O.P. Industries Pty Ltd Service Department (Adelaide) Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by O.P. Industries Pty. Ltd. (the Applicant). The Agreement is a single enterprise agreement.

1. 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement says at clause 11.1 that the model flexibility term is incorporated into the Agreement. 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. Clause 11 also contemplates the making of common law arrangements. The Commission notes that any common law agreements between the employer and employees cannot be inconsistent with or inferior to the Act and the Agreement.

1. The Agreement provides at clause 41 that the model delegates’ rights clause from the Electrical, Electronic and Communications Contracting Award 2020 (the Award) will apply. In accordance with section 205A of the Act, the delegate’s rights term in the Award will be taken to be a term of the Agreement.

1. Clause 25.3 of the Agreement does not list employees who are pregnant in the classes of employees who can seek a Flexible Work Arrangement. This may be inconsistent with the National Employment Standards (NES). The Agreement does not set out that employees who meet the definition of shiftworker in the Agreement are entitled to 5 weeks of annual leave per year in accordance with the NES. The Agreement may also be inconsistent with NES when purporting to withhold money on termination of employment where an employee has not provided the required notice or abandoned their employment.

1. Noting 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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act from 25 October 2024. The nominal expiry date of the Agreement is 18 October 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE526423  PR780367>

ANNEXURE A