Powertech Pty Ltd
[2025] FWCA 3353
•7 OCTOBER 2025
| [2025] FWCA 3353 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Powertech Pty Ltd
(AG2025/2007)
POWERTECH ENTERPRISE AGREEMENT 2025
| Electrical contracting industry | |
| COMMISSIONER YILMAZ | MELBOURNE, 7 OCTOBER 2025 |
Application for approval of the Powertech Enterprise Agreement 2025
An application has been made for approval of an enterprise agreement known as the Powertech Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Powertech Pty Ltd (the Employer). The Agreement is a single enterprise agreement.
In the form F18 from the Australian Workers’ Union (AWU), a number of objections to the approval of the Agreement were made. The 5 objections were:
1. The proposed Agreement was not genuinely agreed.
2. An alleged cohort of workers outside the scope of the proposed Agreement participated in the vote.
3. A cohort of workers that participated in the vote did not have sufficient interest in the terms of the Agreement.
4. The employer did not fulfil the requirements of s.180(5) of the Act
5. The proposed Agreement does not pass the better off overall test.
The parties were afforded a generous period to provide submissions and evidence regarding the AWU objections which largely concerned the question whether the Commission can be satisfied of genuine agreement and the better off overall test. The AWU presented a witness statement of Paul Manns, a mechanical commissioning technician, who gave evidence and a witness statement of Ross Kumeroa, the AWU Organiser, but did not present himself to give evidence. Ms Lauren Wooldridge, Human Resources Manager provided a witness statement and gave evidence for the Employer.
Neither the CEPU nor independent bargaining representative made any submissions in the hearing on 5 September 2025.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) submitted a form F18, noting it does not support approval of the Agreement on the basis that the terms did not meet its expectations of a fair increase. However, it did not wish to formally oppose approval of the Agreement. The CEPU indicated it wished to be covered but did not intend to sign the Agreement.
An independent bargaining representative advised in its form F18A that it supported approval of the Agreement.
This Agreement is a roll-over agreement replacing the Powertech Enterprise Agreement 2021 which expired on 1 June 2025. The CEPU was covered by the earlier Agreement, but the AWU was not.
Both the CEPU and AWU plus the independent bargaining representatives actively engaged during the bargaining process, over a period of six months when a proposed Agreement was put out to vote on six separate occasions. It is on the sixth vote in June 2025 that the Agreement was agreed and its text reflected the April version as no further changes were made to the proposed Agreement from that date. It is noted that following the unsuccessful vote in April 2025, a vote in May 2025 was again unsuccessful. Throughout this period of active bargaining there is no evidence of concern raised regarding whether explanations were reasonable.
In this matter the objections concern participation in the vote by ineligible employees. The Employer employs a large cohort of casuals and reference is made to the “access period” for convenience. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022,[1] introduced a number of changes, one being the removal of the reference to the access period in s.180(4) of the Act. In place of s.180(4), the current requirement is to apply the Statement of Principles which do reference the 7-day period or a reasonable time period immediately before the vote (formerly known as the access period). This period is relevant when required to consider whether casuals were ‘employed’.
The Objections
The AWU submits that the Agreement covers employees engaged in Australia wide classifications and extends to the outer limit of the exclusive economic zone as defined by s.12 of the Act and that the scope is wider than that set out in the Notice of employee representational rights (NERR) sent to employees in October 2024. It submits that the NERR covered employees who work in the value steams resourcing, operations and maintenance and technical services branches. It contends that due to the broadness of the scope of the Agreement, the Commission cannot be satisfied that employees that voted were sufficiently representative as required by s.188(2)(b) of the Act and in accordance with principle 17(b) of the Statement of Principles on Genuine Agreement.
There are no concerns regarding the scope of coverage of the Agreement against the scope of the NERR. The NERR while not containing a detailed description as contained in the Agreement, identifies the employer and the scope of coverage of employees for the purpose of giving notice of a right to be represented in the bargaining process.
The Employer’s HR Manager, Ms Wooldridge, provided evidence of the scope, diversity and geographical spread of the business. The vote result demonstrates a strong voter turnout with only 22 employees abstaining, despite the high casual voter cohort. I observe that the Agreement is a roll-over agreement and contains the same classifications and same breadth of coverage as the 2021 Agreement. Further I accept the evidence of Ms Wooldridge that the voting group represents the range of classifications, full-time, part-time and casual employees and sites covered by the Agreement. For these reasons I am satisfied that the employees that voted for the Agreement are sufficiently representative as required by s.188(2)(b) of the Act and the Statement of Principes in principle 17(b).
On the matter of whether employees have sufficient interest in the terms of the agreement as required by s.188(2)(a) of the Act, the AWU says that the Agreement has low rates of pay compared to the prevailing rates of pay in the sectors in which the Employer would operate. While the rates are above award, if approved, the Agreement would be a ‘baseline’ enterprise agreement to allow the Employer to tender for work with the lowest rates of pay. The AWU nevertheless acknowledges that generally employers with baseline agreements do employ workers on rates that exceed and sometimes substantially exceed the Agreement rates. It is on this basis that the AWU contends that if the employees that voted for the Agreement were on substantially higher rates, that the Commission cannot be satisfied that the employees were sufficiently interested.
On assessment of the Agreement, despite it being a ‘baseline’ agreement, it confers a range of entitlements including wage increases, superannuation and leave entitlements, entitlements for travel, meal and special conditions and relevant flexibilities for the mobile workforce. Having considered these entitlements, the AWU submissions relying on baseline rates fails to take into consideration the full effect of the terms of the Agreement on the employees to be covered by the Agreement and perhaps assumes that employees may lack interest in the Agreement. The high level of participation in the bargaining process and the vote is evidence of interest in the process and the final Agreement. However, sufficient interest is more than the personal interest of employees to engage in the bargaining process. In reaching the conclusion that employees have sufficient interest, I rely on the reasoning of the Full Bench in CFMEU v JWLand Construction,[2] that “sufficient interest” refers to whether the interests of employees are affected by the terms of the enterprise agreement rather than the level of “curiosity or engagement in the bargaining process.” The relevant paragraph from the decision follows:
[52] In a general sense, the reference to employees having a “sufficient interest” in the terms of an enterprise agreement refers to an examination of whether the interests of the employees are affected by whether the Agreement is approved rather than an assessment of the degree of curiosity or engagement of employees in the bargaining process. Whether the interests of the employee are affected is ordinarily likely to depend on their objective circumstances rather than on whether individual employees have taken an active intellectual interest in the subject.
The AWU contends that the Employer did not take reasonable steps to explain the Agreement consistent with the requirements of s.180(5) and therefore under s.188(4A) the Commission cannot be satisfied that the agreement was genuinely agreed. In support of this contention the AWU says the comparison documents fall short of “all reasonable steps” in relation to the casual conversion clause, a new capacity in clause 3.3 of the Agreement to unilaterally introduce an all up hourly rate, clause 4.1 (c) that allows the ability to change ordinary hours of work, a cyclone stand down clause that provides 3 days compared to 5 in the Hydrocarbons Award[3] and no explanation of the interaction between clauses 3.4(a)(ii) and 3.6 which creates confusion and may lead to disputation. The AWU further add that there is no document that compares the Agreement against the three relevant Modern Awards, and the Employer does not confirm whether the new all-in rates would result in the employees being better off overall. These deficiencies, it contends, means the Commission further cannot be satisfied that principle 18 of the Statement of Principles has been met. Finally, the AWU submit that some casuals commenced after April 2025, and there is no evidence that the Agreement was explained to them.
The Employer’s HR Manager provided evidence describing her role in communicating with employees, provided the materials explaining the differences between the former and proposed Agreement plus supplementary explanatory materials, and detailed the level of support to managers to complement the HR Manager’s process to disseminate information to employees. The delivery of this material was by group and individual information sessions. Relevantly I observe that the Agreement is a roll-over enterprise agreement, there is a history of bargaining and that there were five prior failed attempts at a vote in 2025, the last version of the Agreement contained no changes from the version presented in April 2025. I am satisfied that employees were given the materials and had sufficient time to consider them to make an informed decision before the vote. The requirement is that the Employer takes all reasonable steps, a practical approach to explain the Agreement, it does not require that the Employer provide a full or perfect explanation, nor an explanation of every clause.[4] Principle 18 of the Statement of Principles concerns a finding of genuinely agreed if the agreement is a ‘product of an authentic exercise’ and the employees that vote ‘had an informed and genuine understanding of what was being approved.’ Given the circumstances and the evidence there is no reason to find that principle 18 has not been met.
In addition having considered the AWU concerns over particular clauses, I am satisfied that a practical or reasonable approach was taken to explain the terms and the effect of the terms of the Agreement to employees to be covered by the Agreement and the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the employees.[5] Clause 3.3 has the additional paragraph in the proposed Agreement which provides for an all-in rate which is clearly identified in the marked up proposed Agreement provided to all employees. The proposed Agreement at clause 3.3 further has a note that explains that the provision was added during the review prior to commencement of bargaining. The casual conversion clause is similarly marked up and the difference is apparent. The AWU concerns regarding the relationship between clauses 3.4(a)(ii) and 3.6 are unclear as both clauses are unamended compared to the 2021 Agreement. I do not agree that clause 4.1(c) contains scope for manipulation of ordinary hours of work, nor am I concerned over the cyclone pay provisions. Each of these terms were provided to employees and explained to enable a reasonable opportunity in a free and informed manner to consider and vote on the proposed Agreement.
I am satisfied that employees received the proposed agreement, the 2021 Agreement, the log of claims, supplementary documents explaining the changes and copies of the relevant three Modern Awards, together with information sessions, correspondence and availability of management on site for one on one explanations. Therefore, considering all the circumstances and evidence, I am satisfied that all reasonable steps had been taken to explain the proposed Agreement to employees to be covered by the Agreement, and those steps are consistent with the requirements of genuine agreement in s.180(5) of the Act and the requirement of principle 18 in the Statement of Principles.
The AWU objects to the revision of the vote following the Commission seeking clarification whether all casuals that voted were employed at the time. In particular, the AWU contends that s.188(5) which allows for minor procedural and technical errors to be disregarded when assessing genuine agreement when approving an enterprise agreement cannot be relied on to approve the Agreement in circumstances involving errors in the voting process. Secondly the AWU question whether the voting process was compromised with disclosure or the individual voting details ascertainable by the employer given that the Ballot Agent when reviewing the vote was able to exclude two ineligible employees. The AWU raise these concerns on the basis that the Employer discovered two employees were incorrectly included in the voting cohort (one a casual that did not work during the access period and an administrative employee), but also an additional 25 casuals that the Employer does not concede ought to be removed from the voting cohort because while they did not work during the access period they were rostered immediately afterwards because of the project in which they were engaged.
In relation to the second objection, the Employer provided an explanation of the voting process and the actions of the Ballot Agent to conduct the vote and review of the result. This material is satisfactory, and I conclude that the process of the vote and the review of the result was above board, there is no evidence to suggest otherwise, and that the exclusion of two employees (identified as ineligible to vote after the vote) is appropriate in the circumstances and does not affect the final outcome.
In relation to the first objection about the error in the voting process by inadvertently including ineligible employees to vote, the Employer identifies that it has a large number of casuals and consequently due to the process to prepare material for the Ballot Agent to conduct the vote, it eventuated that some casuals expected to work during the access period did not. The Employer contends that 25 of the 26 casuals that did not work during the access period were engaged on projects but just did not work in that period. The revised vote by the Voting Agent shows 222 employees eligible to vote, of which 200 participated and 120 voted in favour. A majority of employees that participated in the vote, voted in support of approval of the Agreement. I observe that even if the 25 casuals that did not work during the access period were excluded, the result is that a majority voted in favour of the Agreement. The Employer submits that it is unnecessary to exclude the 25 casuals because of the nature of engagement of the casuals is for a project where the roster would commence immediately after the access period. The AWU say that McDermott[6] is not authority on this matter and refer to Noorton.[7] However, the Full Bench in Noorton, while expressing misgivings over the accuracy of McDermott, did not express a concluded view. It is noted that the issue of casual employment on a regular or with an agreed pattern may be a valid consideration when considering whether a casual may vote but for a good reason was not engaged during the access period. A case in point is Monadelphous Engineering.[8] However, I need not make any further conclusions on this matter as the vote in support for the Agreement was by majority, even with the removal of the 25 casuals from the final count assuming they voted in favour.
Importantly an enterprise agreement is made if the employees covered by the agreement have been asked to approve the agreement under s.181(1) and the majority cast a vote to approve the agreement. The enterprise agreement is made when a majority of those employees who cast a valid vote approve the agreement.[9] Section 186 provides the requirements of an application for which the Commission must approve an enterprise agreement. One of the requirements is that when an enterprise agreement is made, a bargaining representative must make an application within 14 days for approval. Section 186 further provides that the Commission must be satisfied of genuine agreement as provided by s.188 and that the BOOT is met and with undertakings if required among other considerations such as coverage, a required period for the agreement and nominal expiry date. Section 186 makes no further reference to the vote other than noting when an agreement is made. Section 188 concerns the requirements when assessing where there is genuine agreement. Firstly, there is genuine agreement provided that there is sufficient interest and employees are sufficiently representative in s.188(2) and consistent with One Key[10] that the agreement was genuinely agreed authentically and that employees had an informed and genuine understanding. Also, in s.188(5) when determining if there is genuine agreement the Commission may be satisfied having regard to minor procedural or technical errors in certain circumstances. One of those circumstances is s.182(1) which concerns the making of a single enterprise agreement when employees are asked to vote in accordance with s.181(1), they have voted and have voted by majority. The majority employee cohort of the Employer that voted in support of the Agreement had both sufficient interest and were sufficiently represented except for two (or possibly a further 25) ineligible employees that were inadvertently included. This is a minor technical or procedural error that may be considered when assessing the final count of votes to determine if the single enterprise agreement was made. It is not uncommon where upon finalisation of the voting process if the enterprise agreement is made, but on checking whether all votes were valid, that invalid votes may adjust the final count. It is not fatal to approval of an agreement to remove ineligible employees which may affect the final count of valid votes.[11] Such adjustments to the final vote arising from minor technical or procedural error can be accepted where there is no disadvantage to employees. I am also satisfied that the final vote constitutes a majority in support of approval of the Agreement.
In addition to the concerns raised by the Commission regarding whether the Agreement meets the better off overall test, it submits that annual salaries while subject to review every three months, there is no obligation to pass on the calculations to the employee, thereby passing a compliance burden onto the employee. The Employer has addressed all of the BOOT concerns raised by the Commission with undertakings and I observe that the reconciliation provisions are consistent with the request for undertakings consistent with the principles in Beechworth[12] as requested for the 2021 Agreement. On this basis there are no further concerns to be addressed in relation to the BOOT.
Conclusion
I am satisfied that the adjustment to the final vote constitutes a minor technical or procedural error that employees were not likely to be disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.
I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The NERR contained a minor difference in the title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.
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, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
The Australian Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, both being a bargaining representative for the Agreement, have each given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement is approved and in accordance with s.54, will operate from 14 October 2025. The nominal expiry date of the Agreement is 6 October 2029.
COMMISSIONER
Appearances:
S Rogers, Counsel, instructed by J Creese of Mills Oakley for the Applicant
J Dunn for The Australian Workers’ Union
Y Abousleiman for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Hearing details:
2025.
Melbourne (via Microsoft Teams):
September 5.
Annexure A
[1] Received Royal Assent on 6 December 2022.
[2] Construction, Forestry and Maritime Employees Union v JWLand Construction Pty Ltd[2025] FWCFB 147 at [52].
[3] Hydrocarbons Industry (Upstream) Award 2020.
[4] See Construction, Forestry and Maritime Employees Union v JWLand Construction Pty Ltd[2025] FWCFB147, National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 (Harrison SDP, Sams DP, Deegan C, 10 August 2011) [(2011) 210 IR 244] and McDonald’s Australia Pty Ltd [2010] FWAFB 4602 (Watson VP, Kaufman SDP, Raffaelli C, 21 July 2010) [(2010) 196 IR 155].
[5] Section 180(5) of the Fair Work Act 2009.
[6] McDermott v AWU & AMWU[2016] FWCFB 2222.
[7] Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry[2018] FWCFB 7224.
[8] Monadelphous Engineering [2025] FWCA 1123.
[9] Section 182(1) of the Fair Work Act 2009.
[10] One Key Workforce Pty Ltd v Construction, Forestry, Mining an Energy Union [2018] FCAFC 77 (2018) 262 FCR 527.
[11] See Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599 and National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (17 July 2015) [(2015) 232 FCR 246].
[12] Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery[2017] FWCFB 1664.
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