Powernet Constructions Pty Ltd T/A Powernet Constructions

[2023] FWCA 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Powernet Constructions Pty Ltd T/A Powernet Constructions

(AG2023/1188)

POWERNET CONSTRUCTIONS PTY LTD AND POWERNET EMPLOYMENT PTY LTD ENTERPRISE AGREEMENT 2022

Electrical power industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 24 MAY 2023

Application for approval of the Powernet Constructions Pty Ltd and Powernet Employment Pty Ltd Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Powernet Constructions Pty Ltd and Powernet Employment Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Powernet Constructions Pty Ltd T/A Powernet Constructions (Employer). The Agreement is a single-enterprise agreement.

The Employer has 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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:
· Clause 27.14 provides that an employee shall only be allowed to take a maximum of five single day annual leave absences in a 12-month period. The entitlement to take annual leave provided by s 88 of the Act does not limit the number of single day annual leave absences that may be taken.
· Clause 27.16.6 provides that that the Employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the Employer and an individual employee, rather than a majority of employees.

· The entitlement to compassionate leave provided by clause 36.5 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105(1)(b) of the Act, or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 31 May 2023. The nominal expiry date of the Agreement is 31 May 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Powernet Constructions Pty Ltd, trading as Powernet Constructions, and Powernet Employment Pty Ltd applied for approval of their enterprise agreement. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The primary dispute centred on whether the agreement sufficiently provided for the employees' terms and conditions of employment, ensuring fairness and compliance with the legislative framework.

The legal issues before the Commission included whether the agreement adequately addressed minimum entitlements, provided for the negotiation of future changes, and complied with the procedural requirements of the Fair Work Act. Additionally, the Commission had to consider whether the agreement was free from any invalid provisions that could undermine its fairness or legality. The applicant argued that the agreement was comprehensive and fair, while no objections were raised by any party that could challenge its approval.

In its decision, the Fair Work Commission examined the provisions of the agreement in detail, assessing their alignment with the statutory requirements. The Commission found that the agreement contained all necessary terms and conditions of employment, including minimum entitlements and mechanisms for future negotiations. The agreement was also deemed to be procedurally sound, having been made in accordance with the prescribed processes. Consequently, the Commission approved the enterprise agreement, determining that it met all the statutory criteria for approval.

The final orders of the Commission included the approval of the Powernet Constructions Pty Ltd and Powernet Employment Pty Ltd Enterprise Agreement 2022, effective from the date of the decision. The agreement was recognised as a valid and enforceable instrument governing the employment terms and conditions of the employees covered by it.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established