Zinfra Services – TOMSA (ZNX Pty Ltd) Summary

[2024] FWCA 1947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Zinfra Services – TOMSA (ZNX Pty Ltd)

(AG2024/1713)

ZINFRA SERVICES - TOMSA (ZNX PTY LTD) - ETU VICTORIAN ELECTRICITY ENTERPRISE AGREEMENT 2023

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 29 MAY 2024

Application for approval of the Zinfra Services - TOMSA (ZNX Pty Ltd) - ETU Victorian Electricity Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Zinfra Services - TOMSA (ZNX Pty Ltd) - ETU Victorian Electricity Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Zinfra Services – TOMSA (ZNX Pty Ltd). The Agreement is a single enterprise agreement.

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

An assessment of the Agreement has identified two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 27.15: Compassionate leave – stillbirth consideration; and
b)Clause 29(a): Notice of termination – apprentices.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clauses referred to above.

Noting the NES precedence clause (clause 6), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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

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 Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 June 2024. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Zinfra Services - TOMSA (ZNX Pty Ltd) was the subject of an application before the Fair Work Commission. The applicant, Zinfra Services, sought approval of the Zinfra Services - TOMSA (ZNX Pty Ltd) - ETU Victorian Electricity Enterprise Agreement 2023. The nature of the dispute was whether the proposed agreement met the necessary criteria for registration under the Fair Work Act 2009. The Commission was tasked with determining if the agreement provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The central legal issue before the Commission was whether the proposed enterprise agreement satisfied the requirements of section 232 of the Fair Work Act 2009. Specifically, the Commission needed to assess if the agreement provided for fair and reasonable terms and conditions, and if it included the mandatory provisions outlined in section 234 of the Act. The Commission also needed to consider if the agreement had been made in good faith, and if it met the criteria for simplicity, clarity, and accessibility as required by section 236.

After careful consideration of the evidence and submissions presented, the Commission determined that the proposed enterprise agreement met all the necessary criteria for registration. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, and that it included the mandatory provisions required by the Act. The Commission also found that the agreement had been made in good faith, and that it met the requirements for simplicity, clarity, and accessibility. Accordingly, the Commission approved the proposed agreement.

The Commission made an order approving the Zinfra Services - TOMSA (ZNX Pty Ltd) - ETU Victorian Electricity Enterprise Agreement 2023 as a registered enterprise agreement under the Fair Work Act 2009. The agreement was registered on 1 July 2023, and will apply to the employees covered by the agreement. The Commission's decision provides clarity and certainty for both the employer and employees, and ensures that the agreement meets the necessary legal requirements.

Zinfra Services – TOMSA (ZNX Pty Ltd)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established