Zinfra Contracting Pty Ltd T/A Zinfra

[2023] FWCA 2224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Zinfra Contracting Pty Ltd T/A Zinfra

(AG2023/2196)

ZINFRA SERVICES (ZINFRA CONTRACTING PTY LTD) TASMANIA ELECTRICAL WORKS ENTERPRISE AGREEMENT 2022

Electrical contracting industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 18 JULY 2023

Application for approval of the Zinfra Services (Zinfra Contracting Pty Ltd) Tasmania Electrical Works Enterprise Agreement 2022

Introduction

Zinfra Contracting Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Zinfra Services (Zinfra Contracting Pty Ltd) Tasmania Electrical Works Enterprise Agreement 2022 (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 Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 20 June 2023.

National Employment Standards (NES)

Clause 8.1.1 of the Agreement appears to provide for annual leave to accrue for each completed four weeks, compared to s.87(2) of the Act which provides that annual leave is progressively accrued. This issue is addressed by the undertaking provided by the Employer in relation to the application of the NES.

Part-time employees

The Agreement does not provide safeguards for employees to agree upon their hours of work when engaged as a part time employee and does not provide that hours worked in addition to agreed part time hours will be paid at overtime rates. The Employer has submitted that it is not foreseeable that any employee will be engaged on a part-time basis. As such, I do not consider that a part-time employee is a reasonably foreseeable employee for the purpose of s.193.

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 based on the submissions of the Employer, 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.

Section 183 Bargaining Representatives

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 July 2023. The nominal expiry date of the Agreement is 1 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Zinfra Contracting Pty Ltd trading as Zinfra, the applicant sought approval of the Zinfra Services (Zinfra Contracting Pty Ltd) Tasmania Electrical Works Enterprise Agreement 2022. The applicant, a company operating in the electrical contracting industry, aimed to have the enterprise agreement ratified under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the statutory requirements for approval and whether it met the necessary standards for fairness and reasonableness.

The primary legal issues before the court were whether the enterprise agreement adhered to the statutory criteria for approval and whether it demonstrated a balance of fairness and reasonableness in its terms and conditions. The court needed to ensure the agreement was genuinely negotiated, covered the appropriate scope of employment, and did not adversely affect employees' rights. Additionally, the court had to confirm that the agreement did not contravene any existing industrial awards or safety regulations.

The court examined the provisions of the Fair Work Act 2009 and considered the procedural steps taken in negotiating the agreement. It assessed whether the agreement was negotiated in good faith, involved genuine consultation, and provided for a fair and reasonable outcome for employees. The court also evaluated if the agreement met the standards of procedural fairness, ensuring that all relevant parties were given a reasonable opportunity to be heard. Ultimately, the court found that the enterprise agreement met the statutory requirements for approval and was fair and reasonable in its terms and conditions.

The final orders of the court approved the Zinfra Services (Zinfra Contracting Pty Ltd) Tasmania Electrical Works Enterprise Agreement 2022, recognising it as a valid and enforceable enterprise agreement under the Fair Work Act 2009. The court's decision validated the agreement, ensuring that it would govern the employment conditions for the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established