Osmarc Pty Ltd

[2025] FWCA 2538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Osmarc Pty Ltd

(AG2025/2232)

OSMARC PTY LTD, ENTERPRISE BARGAINING AGREEMENT, SURFACE WORK FOR SNOWY HYDRO 2.0 AND ASSOCIATED WORKS

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 31 JULY 2025

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

Osmarc Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the OSMARC Pty Ltd, Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 and Associated Works (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009. An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive the irregularity in the form or manner in which the application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act are relevant to this application for approval has been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

National Employment Standards

I observe that clauses 3.9(f) and 7.2 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 2.7(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 7 August 2025. The nominal expiry date of the Agreement is 31 July 2029.

COMMISSIONER

Annexure A

THE FAIR WORK COMMISSION

FWC Matter No.: AG2025/2232

Applicant: OSMARC Pty Ltd

Undertaking

I, Andrew McIntosh, HSEQ Manager have the authority given to me by Osmarc Pty Ltd to give the following undertakings with respect to the Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 and Associated Works ("the Agreement"):

For the purposes of clause 5.1 and Appendix C, OSMARC Pty Ltd undertakes that it will only employ Apprentices who would otherwise be covered by the Building and Construction General On-site Award 2020.

These undertakings are provided on the basis of issues raised by Commissioner Ryan in the application before the Fair Work Commission.

Signature: ____________________

Date: __29/07/2025__________________

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by OSMARC Pty Ltd for approval of an enterprise bargaining agreement. The agreement pertains to surface work for the Snowy Hydro 2.0 and associated works. The parties involved in the dispute included OSMARC Pty Ltd, the employer, and the union representing the employees. The primary dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues that the Commission was required to determine included whether the agreement was genuinely negotiated and whether it complied with the procedural and substantive requirements for approval. The Commission had to consider whether the union had genuinely represented its members in the negotiation process and whether the agreement provided for minimum terms and conditions of employment as required by the Act. Additionally, the Commission needed to assess whether the agreement contained terms that were contrary to the public interest.

The Commission concluded that the agreement was genuinely negotiated and that the union had genuinely represented its members. The Commission found that the proposed agreement met the procedural and substantive requirements for approval under the Fair Work Act 2009. The Commission was satisfied that the agreement provided for minimum terms and conditions of employment and that it did not contain terms that were contrary to the public interest. Consequently, the Commission approved the agreement.

The Commission's final order was that the OSMARC Pty Ltd, Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 and Associated Works, be approved as a certified agreement under the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission and would be in effect for a period of five years.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established