OSMARC Pty Ltd

[2025] FWC 1281

[2025] FWC 1281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

OSMARC Pty Ltd

(AG2025/992)

COMMISSIONER MCKINNON SYDNEY, 8 MAY 2025

Application for approval of the OSMARC Pty Ltd, Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0

1. OSMARC Pty Ltd (OSMARC) has applied for approval of a single enterprise agreement known as the OSMARC Pty Ltd, Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 (the Agreement) under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement covering civil construction employees performing work at the Snowy Hydro 2.0 Works Site. “Works” is defined to mean “the work carried out at the Lobs Hole site”. Although the Agreement defines “Award” as the Concrete Products Award 2020 (Concrete Award), it incorporates the terms of the Building and Construction General On-site Award 2020 (Building Award).

1. The Agreement was made with 4 of the 7 employees said to be covered by its terms. No bargaining representatives were appointed by the parties and no union appears to have been involved in the making of the Agreement. OSMARC has expressed the view that the Agreement passes the better off overall test. The views of the employees on this matter are not clear, although it can be inferred from the voting outcome that at least some share this view.

Signatories to the Agreement

1. The Agreement is not signed by a relevant employee representative (either the first version of the Agreement filed with the application, or the later version said to have rectified the deficiency). The Agreement is signed only by the employer in the presence of a witness for the employer. This means the requirements of regulation 2.06A of the Fair Work Regulations 2009 are not met in relation to the Agreement.

The better off overall test

1. I am satisfied on the materials that the Agreement passes the better off overall test. Rates of pay including generous site and productivity allowances are sufficiently high to compensate for the minor, less beneficial changes to terms and conditions of employment in the Agreement as compared to the Concrete Award and the Building Award. With the terms of the Building Award incorporated in the Agreement, employees will be better off overall than if either the Concrete Award or the Building Award applied to their employment.

Genuine agreement

1. I am not satisfied on the materials that the Agreement has been genuinely agreed to by employees.[1] The approval application did not include the required Form F17B in support of the application. On 23 April 2025, OSMARC provided additional supporting information to the Commission. This was described as:

• A copy of the notice of employee representational rights (NERR)
• Copies of materials used to explain to employees the terms of the agreement and the effect of those terms
• Copies of any materials used to ensure the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees
• Copies of any materials provided to employees to notify them of the time and place at which the vote was to occur and the voting method to be used
• A correctly signed copy of the agreement, including:

·     Employer signature, with full name, address and an explanation of their authority to sign the agreement

·     Employee or employee representative signature with full name, address and an explanation of their authority to sign the agreement.

1. The supporting information provided was a copy of the Notice of Employee Representational Rights (Notice), a covering email in relation to the Notice, a blank template instrument of appointment of bargaining representative, a Form F17B, a revised version of the Agreement replacing the definition of “Award” in clause 1 of the Agreement with reference to the Building Award and containing a revised signature page, and a “meeting script” which appears to have been used to explain the purpose of a meeting with employees about the Agreement and their right to have a representative.

1. On the information provided, there appears to have been one meeting with employees to explain the Agreement on 24 February 2025. There is no information about what employees were told about the terms of the Agreement or their effect, except in a general sense by reference to “rates/entitlements”, and an intention to adopt the same or very similar terms of employment and remuneration for other people working on the Snowy Hydro 2.0 project on the basis of the ‘same job, same pay’ principle.

1. An email to employees on 20 February 2025 explained that the Agreement was for “above ground (surface works) only” and “does not contemplate sub surface (tunnelling) works”. Although that may have been the intention, this limitation on coverage does not appear in the terms of the Agreement, which is expressed to cover all employees engaged in civil construction as Surface Worker classifications 1 – 8 who are performing work at the Lobs Hole site. This includes but is not limited to construction of roadworks, earthworks, structures, service relocations, associated buildings, structure and traffic management, civil construction, local area station box works, earthmoving, road construction, surface excavation, drainage and all other directly associated works.

1. The same email of 20 February 2025 provided information to employees about notice of the vote and voting process for the Agreement. It referred to a meeting to vote on the Agreement on 13 March 2025 at 5.30pm in Gungahlin, ACT. It did not specify the method of the vote. The vote itself appears to have occurred by show of hands in circumstances where the vote of each employee became known to OSMARC. The Form F17B refers to an employee request for in-person vote. If such a request was made, it must have followed OSMARC’s earlier advice to employees that the vote would be held at an in-person meeting. The Form F17B declares that the vote occurred in person but on 24 March 2025. There is no information about when, whether and how this change of time for the vote was notified to employees. Only 4 of the 7 employees said to be covered by the Agreement attended to participate in the vote. On those numbers, if only one employee was not provided with a reasonable opportunity to vote on the Agreement, the possibility of a different outcome cannot be excluded. I cannot see how the identified deficiencies in relation to genuine agreement could be overcome by undertaking in the circumstances.

Conclusion

1. The application was not accompanied by a signed copy of the Agreement. Further, I am not satisfied that the Agreement has been genuinely agreed to by the employees it is expressed to cover. It follows that the application does not meet the requirements in s.186 of the Act that must be met before the Agreement to be approved.

1. The application is dismissed.

COMMISSIONER

Determined on the papers.

[1] Fair Work Act 2009, s.188; Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023

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