Service Stream Maintenance Pty Ltd

[2025] FWCA 2919

[2025] FWCA 2919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Service Stream Maintenance Pty Ltd

(AG2025/2742)

SERVICE STREAM LATROBE VALLEY POWER STATIONS (MECHANICAL) ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER FOX	MELBOURNE, 29 AUGUST 2025

Application for approval of the Service Stream Latrobe Valley Power Stations (Mechanical) Enterprise Agreement 2025.

1. An application has been made for approval of an enterprise agreement known as the Service Stream Latrobe Valley Power Stations (Mechanical) Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Service Stream Maintenance Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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. The Form F17B states that 68 employees out of 139 employees who are covered by the Agreement are casual employees. The Employer provided submissions that all 68 casual employees were employed at the time and entitled to vote. Pursuant to the Full Bench in Appeal by Kmart Australia Limited t/a Kmart and others,[1] I am satisfied that s.181(1) of the Act has been met.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Annual Leave: Clause 22.2.2 states that annual leave shall be taken following consultation and approval of the Company to meet the requirements of the work program. Section 88(2) of the Act states that an employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

• Withholding Monies at Termination: Clause 10.10 of the Agreement states that if the employee fails to give applicable notice, the employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice. This clause does not appear to limit the source of monies which may be deducted. The effect is that it appears to permit the employer to withhold monies owing to the employee under the NES.

• Personal/ Carer’s Leave: Clause 22.2.7 of the Agreement states that sick leave can be claimed while on annual leave if a medical certificate is provided. Clause 22.8.2 of the Agreement states that the employee shall, if required, establish by production of a medical certificate, or statutory declaration for the illness of the person concerned. Clause 22.9.5.2 of the Agreement states that the employee shall, as soon as reasonably practicable and within eight (8) hours of the commencement of such absence inform the Company of inability to attend, and as far as practicable, state the nature of the injury or illness and the estimated duration of the absence. Clause 22.9.5.4 of the Agreement states that for absences in excess of 5 days in any calendar year a Medical Certificate or statutory declaration may be required prior to payment of personal leave. Section 107(2) of the Act states that notice must be given as soon as practicable (which may be a time after the leave has started). Section 107(3) of the Act states that to take personal/ carer’s leave, the evidence that must be required is evidence that would satisfy a reasonable person.

• Compassionate Leave: Clause 22.5.1 of the Agreement provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies but is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act.

1. However, noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union and the Construction, Forestry and Maritime Employees Union being bargaining representatives for the Agreement support the approval of the Agreement and has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 5 September 2025. The nominal expiry date of the Agreement is 31 March 2028.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 7599.

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