Synergen Power Pty Limited

[2023] FWCA 1697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Synergen Power Pty Limited

(AG2023/1622)

SYNERGEN POWER SOUTH AUSTRALIA ENTERPRISE AGREEMENT – 2023

Electrical power industry
COMMISSIONER PLATT	ADELAIDE, 9 JUNE 2023

Application for approval of the Synergen Power South Australia Enterprise Agreement - 2023

An application has been made for approval of an enterprise agreement known as the Synergen Power South Australia Enterprise Agreement – 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Synergen Power Pty Limited (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 5 June 2023.

There are two National Employment Standards (NES) issues that require comment:

· Deduction/withholding of monies due to the employee under the NES on termination – Clause 18.5 of the Agreement provides that if an Employee fails to give the full period of notice required by this clause, the Employer will have the right to withhold monies due to the Employee to the extent of the notice shortfall. We note that this provision does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to deduct employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). This raises the issue that this provision may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

· Compassionate leave – Clause 22 provides for compassionate leave; however, it is silent in relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

Clause 4 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

The Australian Services Union (ASU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives for the Agreement, have 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.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54(1)(a) of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Synergen Power Pty Limited sought approval of the Synergen Power South Australia Enterprise Agreement - 2023. The application was made to the Fair Work Commission, which had to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The application involved assessing the fairness of the agreement in relation to various aspects, including wages, conditions, and dispute resolution mechanisms. The primary concern was whether the agreement provided for minimum entitlements and did not include provisions that would be detrimental to employees.

The legal issues before the Commission were whether the agreement satisfied the requirements set out in section 230 of the Fair Work Act. This included verifying that the agreement provided for minimum entitlements, did not include adverse provisions, and was consistent with the relevant minimum standards. Additionally, the Commission had to consider whether the agreement was made in good faith and involved genuine bargaining. The submissions from both parties were examined to determine if the agreement was fair and reasonable.

After considering the evidence and submissions from both parties, the Fair Work Commission determined that the Synergen Power South Australia Enterprise Agreement - 2023 met the necessary criteria for approval. The Commission found that the agreement provided for minimum entitlements, did not include adverse provisions, and was consistent with the relevant minimum standards. The Commission was satisfied that the agreement was made in good faith and involved genuine bargaining. The Commission approved the agreement, allowing it to come into effect on the specified date.

The final orders of the Commission were that the Synergen Power South Australia Enterprise Agreement - 2023 be approved and registered under section 231 of the Fair Work Act. The agreement was to be treated as an enterprise agreement for the purposes of the Act, effective from the date of the Commission's decision. This outcome provided certainty to the parties and ensured that the agreement would operate as intended.

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