Powernet Constructions Pty Ltd T/A Powernet Constructions

[2023] FWCA 1469

[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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

<AE520092  PR762430>

Annexure A