Zinfra Contracting Pty Ltd

[2024] FWCA 1948

[2024] FWCA 1948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Zinfra Contracting Pty Ltd

(AG2024/1632)

ZINFRA PROJECTS AND INFRASTRUCTURE (ZINFRA CONTRACTING PTY LTD) - ETU VICTORIAN ELECTRICITY ENTERPRISE AGREEMENT 2023

Electrical contracting industry
COMMISSIONER MIRABELLA	MELBOURNE, 30 MAY 2024

Application for approval of the Zinfra Projects and Infrastructure (Zinfra Contracting Pty Ltd) - ETU Victorian Electricity Enterprise Agreement 2023.

1. Zinfra Contracting Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Zinfra Projects and Infrastructure (Zinfra Contracting Pty Ltd) - ETU Victorian Electricity Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 19 July 2023 and the Agreement was made on 2 May 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The notice of employee representational rights (the NERR) issued to employees referenced a different agreement title to the Agreement lodged for approval and therefore the NERR was not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. Pursuant to s.205(2) of the FW Act, the model consultation term prescribed by the Fair Work Regulations 2009 (the FW Regs) is taken to be a term of the Agreement.

1. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the FW Regs is taken to be a term of the Agreement.

1. I observe that clause 27.15 (regarding compassionate leave) is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 6(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 30 May 2024 and, in accordance with s.54, will operate from 6 June 2024. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

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