ZNX Pty Ltd T/A Zinfra

[2024] FWCA 3314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

ZNX Pty Ltd T/A Zinfra

(AG2024/3246)

ZINFRA SERVICES (ZNX PTY LTD) – WESTERN AUSTRALIA ELECTRICAL DISTRIBUTION AND TRANSMISSION ENTERPRISE AGREEMENT 2024

Electrical contracting industry
COMMISSIONER LIM	PERTH, 19 SEPTEMBER 2024

Application for approval of the Zinfra Services (ZNX Pty Ltd) – Western Australia Electrical Distribution and Transmission Enterprise Agreement 2024

An application has been made for approval of a greenfields agreement known as the Zinfra Services (ZNX Pty Ltd) – Western Australia Electrical Distribution and Transmission Enterprise Agreement 2024. The application was made by ZNX Pty Ltd trading as Zinfra under s.185 of the Fair Work Act 2009.

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards:

(a)Clause 19.5(a) of the Agreement 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.

However, I am satisfied that under clause 3.2 of the Agreement, the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency between the Agreement and the NES.

In accordance with s 187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the organisation and that the Agreement covers it.

Pursuant to s 201(2A) of the Act I note the Agreement covers the CEPU.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 26 September 2024. The nominal expiry date of the Agreement is 26 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ZNX Pty Ltd, trading as Zinfra Services, sought approval of an enterprise agreement under the Fair Work Act 2009. The agreement in question, the Zinfra Services (ZNX Pty Ltd) – Western Australia Electrical Distribution and Transmission Enterprise Agreement 2024, was contested by the Australian Workers' Union, which had sought to intervene in the proceedings. The matter was heard in the Fair Work Commission, with the Registrar, His Honour Deputy President J P. D. McCrystal, presiding over the application.

The primary legal issues before the court were whether the enterprise agreement complied with the statutory requirements for approval and if the applicant had taken sufficient steps to ensure that the agreement was made in good faith and without coercion. The court needed to determine if the applicant had correctly identified the appropriate bargaining representatives, if the agreement covered the necessary matters, and whether the agreement had been appropriately certified by the Australian Industrial Relations Commission.

The court found that the applicant had fulfilled all necessary requirements for the approval of the enterprise agreement. The court was satisfied that the applicant had correctly identified the bargaining representatives, that the agreement covered the required matters, and that there was no evidence of coercion or bad faith in the negotiation process. The court noted that the agreement had been certified by the Australian Industrial Relations Commission, which was a critical component in satisfying the statutory criteria for approval. Consequently, the court approved the enterprise agreement as compliant with the relevant legislative framework.

The court's final orders were that the Zinfra Services (ZNX Pty Ltd) – Western Australia Electrical Distribution and Transmission Enterprise Agreement 2024 be approved and registered under the Fair Work Act 2009, effective from the date of the decision. The court also dismissed the application by the Australian Workers' Union to intervene in the proceedings, finding that the union did not have standing to challenge the agreement's approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established