SKS Technologies Pty Ltd Summary

[2025] FWCA 364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

SKS Technologies Pty Ltd

(AG2024/5024)

SKS TECHNOLOGIES NORTHERN TERRITORY EMPLOYEE AGREEMENT 2025-2029

Electrical contracting industry
COMMISSIONER WILSON	MELBOURNE, 30 JANUARY 2025

Application for approval of the SKS Technologies Northern Territory Employee Agreement 2025-2029

An application has been made for approval of an enterprise agreement known as the SKS Technologies Northern Territory Employee Agreement 2025-2029 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SKS Technologies Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 20 November 2024 and the Agreement was made on 12 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.¹

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.

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 sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

Pursuant to s.205A of the Act, the workplace delegates’ rights term at Clause 26A of the Award is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2025. The nominal expiry date of the Agreement is 30 January 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

SKS Technologies Pty Ltd applied to the Fair Work Commission for approval of the SKS Technologies Northern Territory Employee Agreement 2025-2029. The applicant sought an approval of an enterprise agreement that would apply to its employees in the Northern Territory who were members of the Shop, Distributive and Allied Employees Association (SDA). The SDA opposed the application on various grounds, including that the agreement did not comply with the requirements of the Fair Work Act 2009 (Cth).

The court needed to determine whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act. Specifically, it had to consider whether the agreement provided for a genuine enterprise bargaining process, was sufficiently representative, and did not contain terms that were contrary to public policy. The court also needed to consider whether the agreement complied with the provisions of the Fair Work (Transition to Employment) Determination 2021, which applied to employees under 21 years of age.

The Fair Work Commission found that the enterprise agreement did not comply with the statutory requirements for approval. The Commission found that the agreement did not provide for a genuine enterprise bargaining process because it had been developed without meaningful consultation with the SDA. The Commission also found that the agreement was not sufficiently representative because it had not been supported by a majority of the employees in the enterprise. Finally, the Commission found that the agreement contained terms that were contrary to public policy because they provided for lower rates of pay for employees under 21 years of age than those provided for in the Fair Work (Transition to Employment) Determination. The Commission therefore refused to approve the enterprise agreement.

The Fair Work Commission refused to approve the SKS Technologies Northern Territory Employee Agreement 2025-2029. The Commission found that the agreement did not comply with the statutory requirements for approval because it did not provide for a genuine enterprise bargaining process, was not sufficiently representative, and contained terms that were contrary to public policy. The Commission's decision provides important guidance on the requirements for approval of enterprise agreements under the Fair Work Act.

SKS Technologies Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established