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

Printed by authority of the Commonwealth Government Printer

Optimal Power Pty Ltd applied to the Fair Work Commission for approval of a Single Enterprise Agreement, a process that was contested by the Transport Workers Union. The Commission was required to determine whether the proposed agreement complied with the statutory requirements under the Fair Work Act 2009. This involved assessing the procedural fairness of the bargaining process and the content of the agreement itself to ensure it met the criteria for a single enterprise agreement.

The legal issues before the Commission included whether the bargaining process was conducted in good faith, whether the agreement was made free of any improper conduct, and if the agreement met the requirements for a single enterprise agreement as outlined in the Act. Additionally, the Commission had to consider if the agreement provided for fair and reasonable terms and conditions for the employees covered by the agreement.

The Commission found that the bargaining process was conducted in good faith and free of any improper conduct. It determined that the agreement was made in accordance with the statutory provisions and met all the necessary criteria for a single enterprise agreement. The terms and conditions of the agreement were found to be fair and reasonable, taking into account the interests of both the employer and the employees. Consequently, the Commission approved the agreement.

The Commission's final order was that the Optimal Power Pty Ltd Single Enterprise Agreement 2021 be approved as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. This approval ensures that the agreement governs the employment terms and conditions for the relevant employees as intended.

Optimal Power Pty Ltd

DECISION

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Legal Principle Established