SKS Technologies Pty Ltd
[2025] FWCA 743
•26 FEBRUARY 2025
| [2025] FWCA 743 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
SKS Technologies Pty Ltd
(AG2025/185)
SKS TECHNOLOGIES NSW EMPLOYEE AGREEMENT 2025-2029
| Electrical contracting industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 26 FEBRUARY 2025 |
Application for approval of the SKS Technologies NSW Employee Agreement 2025-2029
Introduction
SKS Technologies Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the SKS Technologies NSW Employee Agreement 2025-2029 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 20 November 2024 and the Agreement was made on 17 January 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Form F16 Irregularities
On review of the application, the initiating documents contained an irregularity in that an Employee Bargaining Representative appeared to have been nominated, involved in bargaining, and a signatory to the Agreement on behalf of employees, but had not been specified on the Form F16.
On 25 February 2025, the Employer provided submissions that these irregularities were typographical errors and filed an amended Form F16 which nominated the Employee Bargaining Representative.
I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
National Employment Standards (NES) Precedence Term
Clause 39.2.4 of the Agreement provides that where an employee fails to give notice the Employer has the right to withhold monies due to a maximum equal to the basic periodic rate for the period of notice. This clause does not appear to limit the source from which monies may be deducted. The effect of this is that this clause allows the Employer to withhold monies otherwise owing to the employee under the NES. Accordingly, this clause is not consistent with Chapter 2 Part 2.2 Division 2 of the Act.
To the extent that this clause may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 8.3 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Electrical, Electronic and Communications Contracting Award 2020 is taken to be a term of the Agreement.
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.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, and having had regard to the Statement of Principles on Genuine Agreement, 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.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 March 2025. The nominal expiry date of the Agreement is 26 February 2029.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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ANNEXURE A
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