Osborne Cogeneration Pty Ltd

[2024] FWCA 1074

[2024] FWCA 1074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Osborne Cogeneration Pty Ltd

(AG2024/543)

OSBORNE COGENERATION ENTERPRISE AGREEMENT 2023

Electrical power industry
COMMISSIONER PLATT	ADELAIDE, 27 MARCH 2024

Application for approval of the Osborne Cogeneration Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Osborne Cogeneration Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Osborne Cogeneration Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 March 2024.

1. On 12 March 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There is one National Employment Standard (NES) issue that requires comment:

·   Clause 21.2(b) appears to provide that where an employee fails to give the prescribed notice, any payment due to the employee may be forfeited to the extent it falls short of the notice required. Noting the clause does not appear to limit the source of monies which may be forfeited, this may operate to reduce an employee’s NES entitlements.

1. Clause 2.5 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 25 March 2024. The undertaking ensures casual employees will be engaged for no less than 3 hours on each occasion.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

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

1. The Australian Services Union South Australian and Northern Territory Branch, being a bargaining representative for the Agreement, has given 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 that the Agreement covers this organisation.

1. 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.

1. 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 2 April 2028.

COMMISSIONER

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