Optimal Power Pty Ltd

[2021] FWCA 5160

[2021] FWCA 5160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Optimal Power Pty Ltd
(AG2021/6583)

OPTIMAL POWER PTY LTD SINGLE ENTERPRISE AGREEMENT 2021

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 19 AUGUST 2021

Application for approval of the Optimal Power Pty Ltd Single Enterprise Agreement 2021.

[1] Optimal Power Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Optimal Power Pty Ltd Single Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On 12 August 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

•  Chambers sought submissions regarding agreement pre-approval requirements with respect to agreement explanation and coverage.

•  Clauses 9.1.6 regarding termination and 7.6.5 relating to public holidays may be inconsistent with the National Employment Standards however the Agreement contains an effective NES precedence clause at clause 5.7.2 which resolves these concerns.

•  Chambers sought an undertaking confirming the correct test times that applied to the Agreement.

•  Chambers raised better off overall concerns with respect to casual rates of pay and apprentice workers.

[3] The Applicant provided submissions on the above concerns has submitted an undertaking in the required form dated 16 August 2021. The undertaking deals with the following topics:

•  Deleted clause 4.1.1(e) of the Agreement relating to apprentices.

•  Amended clause 6.3.5 with respect to overtime.

•  With respect to clause 7.6.5 of the Agreement, the words “an Employee(s)” are deleted and replaced with the words “an individual Employee”.

•  With respect to clause 9.1.6 of the Agreement, the words “and/or entitlements” are deleted.

•  Confirmed that the relevant rates in the Agreement applied at the agreement test time when the application was made.

•  Amended Item 2, Schedule B with casual employee rates that are better off overall than the Award.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought his view in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertaking is taken to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 19 August 2025.

COMMISSIONER

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