Fair Work Commission|2025-09-19

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ECA Training Pty Limited [2025] FWC 2775 (19 September 2025)

s.739 - Dispute resolution

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Alleged dispute about any matters arising under the enterprise agreement and the NES

[1] On 28 March 2025, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with Appendix 4 of the NECA Electrical Apprenticeships Queensland Enterprise Agreement 2023-2026 (the Agreement), to which the CEPU is a party. ECA Training Pty Limited is the Respondent to this application (ECA/the Respondent).

[2] The matter was listed for conference on 28 April 2025 before another Member of the Commission. The matter did not resolve at conference, and it was reallocated to me to be listed for arbitration in Brisbane.

[3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing in-person in Brisbane on 13 June 2025. The CEPU was represented by Ms Lisa Midson, Legal Officer. The Respondent was represented by Mr Chris Murdoch KC and Mr Stephen Mackie of Counsel, instructed by NECA Legal.

[4] Mr Luke Ellis, CEPU Organiser provided a witness statement for the CEPU. Mr Tom Emeleus, General Manager of ECA, and Mark Wood, Queensland Branch Manager of the National Electrical and Communications Association (NECA), provided witness statements for the Respondent. The parties determined not to cross-examine the witnesses. The parties provided a statement of agreed facts on 14 May 2025.

[5] The Respondent is a charity group training organisation providing employment and support to electrical apprentices. Clause 1.3 of the Agreement provides the following:

"Where a Host Employer is a party to registered agreement or site agreement or is obligated by a site that has superior wages and conditions then the following provisions of the Host Employer's agreement will apply to the Company's apprentices in lieu of the provisions in this Agreement while working for that Host Employer:

Hours of Work
Wages
Allowances
Inclement Weather
Overtime
Living Away from Home
CIRT/JETCO
Superannuation"

[6] In the first week of March 2025, parts of Queensland and northern NSW were affected by Tropical Cyclone Alfred. It is notorious that many businesses, schools and public services closed on Thursday, 6 March and Friday, 7 March 2025 in readiness for the anticipated cyclone. Many locations were affected on Monday, 10 March 2025 after the cyclone had covered the coast.

[7] Where the Respondent's apprentices at a host employer were not required to attend for work and the host employer provided for payment in the circumstances, those apprentices were paid and are not the subject of this decision. This decision deals with the Respondent's apprentices where the host employer did not have superior terms than those contained within the Agreement. Those employees are referred to by the parties as the Affected Employees, and the Affected Days are 6, 7 and 10 March 2025.

[8] Relevant apprentices had, until 6 March 2024, been covered by the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 (the 2022 Agreement),[1] an enterprise agreement covering the Respondent's apprentices across NSW, the ACT and Queensland. A variation[2] was made to that agreement by the Commission on application by ECA to excise Queensland apprentices. Queensland apprentices became covered by the Queensland-specific agreement from 15 March 2024.

[9] The Agreement does not contain an Inclement Weather clause. Clause 1.3 of the Agreement provides that it incorporates the Electrical, Electronic and Communications Contracting Award 2020 (the Award). Where an Award provision is more generous than the Agreement clause the Award will take precedence. Accordingly, the relevant terms of the Award apply and are reproduced below:

Inclement weather means the existence of abnormal and extreme climatic conditions by virtue of which it is either not reasonable or not safe for employees exposed to continue working for the duration of such conditions.

15.2 Conference procedure for inclement weather

The employer or its representative, when requested by the employees or their representative, must confer within a reasonable time (which does not exceed 60 minutes) for the purpose of determining whether or not the conditions referred to in clause 15 apply.

15.3 Transfer of work site due to inclement weather

a) Employees may be transferred from one location on a site where it is unreasonable to work due to inclement weather, to work at another location on the same site or to another site which is not affected by inclement weather.

b) Employees may be transferred from one site to another and the employer provides transport where necessary.

15.4 Payment for lost time due to inclement weather

a) An employee will be entitled to payment by the employer for ordinary time lost through inclement weather whilst such conditions prevail.

b) An employee will not be entitled to payment for time lost through inclement weather as provided for in clause 15.4(a) unless the provisions of clause 15 have been observed."

[10] Section 524 of the Act provides as follows:

"Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period."

[11] The parties agreed that the following questions should be determined by the Commission:

On the basis that clause 15 of the Award is incorporated into the Agreement:

Does section 524 of the Act operate to displace clause 15 of the Award in the circumstances?

If the answer to question 1) is no, does clause 15 of the Award apply to the Affected Employees for the Affected Days in these circumstances?

If the answer to question 2) is yes, are the Affected Employees entitled to be paid ordinary time for the Affected Days in these circumstances?

[12] The CEPU submitted that s.524 of the Act does not operate to displace clause 15 of the Award. The CEPU notes that clause 15 of the Award is incorporated into the Agreement (on account of the Agreement's silence in respect of inclement weather). Section 524(2)(a) of the Act provides that an employer cannot rely on s.524 to stand down an employee without pay where an Agreement or contract of employment applies and provides for employees to be stood down because they cannot usefully be employed because of the stated circumstance.

[13] The CEPU submitted that the inclement weather term is a stand down term because it meets the elements under s.524. The term:

contemplates a stoppage of work for which the employer is not responsible;
provides for alternative useful work; and
prescribes the applicable rate of pay during the period the employee cannot be usefully employed.

[14] Accordingly, the CEPU submitted that this meets the requirements of s.524(2), meaning the Respondent cannot rely on s.524 to displace its obligations under clause 15 of the Award. Further, inclement weather is invariably outside of the employer's control, so any interpretation of s.524 which displaces clause 15 would serve to render clause 15 moot. As such, the CEPU submitted that s.524 of the Act does not operate to displace clause 15 of the Award.

[15] The CEPU submitted that clause 15 of the Award applies to the Affected Employees for the Affected Days as a matter of fact. The CEPU asserted that Tropical Cyclone Alfred constituted inclement weather for the purposes of the Award. In Australian Licensed Aircraft Engineers Association v Qantas,[3] it was said that a cessation of work because of rain constitutes a stoppage of work for the purposes of inclement weather.

[16] The CEPU disagreed with the Respondent's suggestion that work must have commenced to constitute a stoppage of work for the purpose of inclement weather. It was submitted the that reference to unsafe extreme climatic conditions indicates that the Award clearly intends to cover employees who had not commenced work for the day when the work was stopped for inclement weather. An employer responsibly discharging their duty of care to provide a safe work environment by not requiring an employee to attend work due to unsafe and unreasonable weather does not displace clause 15 of the Award.

[17] The CEPU argued that the definition of inclement weather does not require an employee to be exposed to conditions in the literal sense, as this would be dangerous and absurd in the case of extreme conditions. Instead, the CEPU submitted that the better interpretation is that the clause applies where an employee would be exposed to conditions, including where an employer makes an advance decision about potential exposure to unreasonable or unsafe working conditions. There may be circumstances where the weather is so extreme and the prospect of useful work is so remote that the best course is to notify employees not to attend. The CEPU submitted that this was the case in this matter.

[18] It was submitted that Tropical Cyclone Alfred was the cause of the stoppage of work, not government advice or the closure of the worksites of the host employer. It was put that all roads sensibly lead to the cyclone being the operative cause for the stoppage of work.

[19] The CEPU submitted that the Affected Employees are entitled to be paid ordinary time for the Affected Days. The balance of clause 15 was complied with, and the Respondent initiated the stoppage of work on the basis of inclement weather. As such, the Affected Employees are entitled to be paid ordinary time, in compliance with the clause.

[20] Mr Luke Ellis is an Organiser of the CEPU. On 6 and 7 March 2025, he was responsible for coordinating apprentices who are CEPU members. Mr Ellis asserted that the cyclone constituted inclement weather, noting the Prime Minister's press release warning of flooding, significant rain and destructive winds. Mr Ellis gave evidence that from 3 March 2025, he engaged with CEPU members to ensure safety, with the secondary concern of ensuring they were appropriately paid for time off due to inclement weather. To the best of his knowledge, no CEPU member in the region was directed to attend work during the Affected Days.

[21] On 6 March 2025, Mr Ellis was made aware that the Respondent had asked the Affected Employees to stay home and to take annual leave or use their RDOs to cover the Affected Days. The Respondent had not contacted the CEPU to advise it intended to stand down the Affected Employees without pay. Mr Ellis noted that CEPU members employed by the Respondent on sites with host agreements were instructed to record their timesheets as "inclement weather" and were paid ordinary hours.

[22] Mr Ellis contacted Mr Wood to raise with the Respondent that the Affected Employees were owed ordinary hours due to clause 15 of the Award. Mr Ellis stated that Mr Wood declined to comment and referred Mr Wood to Mr Emeleus. Mr Ellis was unsuccessful in contacting Mr Emeleus, and Mr Emeleus did not return his call.

[23] Mr Ellis noted that by late 5 March 2025, the cyclone had turned around and headed back out to sea with a revised landfall of early 8 March 2025; this was not predicted. He agreed that the cyclone did not make landfall on 6 or 7 March 2025.

[24] The Respondent submitted that the matter ought to be determined on the basis that s.524 of the Act provides that where there is a stoppage of work "for which the employer cannot reasonably be held responsible", then the employer can stand employees down without pay. Clause 15 of the Award effectively provides a "carve out", stating that in some (but not all) situations, the stood down employees will be paid. The Respondent posed that the dispute is in relation to whether the "carve out" applies.

[25] The Respondent placed emphasis on the fact that the cyclone had not impacted the region by 6 and 7 March 2025, noting that climatic conditions did not exist on the first two of the Affected Days.

[26] Where clause 15 of the Award does not apply, the Respondent submitted that s.524 served to provide that it could stand down its employees without pay. The Respondent submitted that clause 15 of the Award did not apply to the Affected Employees on the Affected Days, as the Affected Employees were stood down before notification. It argued that clause 15 only applies to existing weather conditions to which employees are, or would be, exposed, and that the work must have commenced, and that commencement of work must have been on a specific workday, for inclement weather to be said to have caused the work not to continue.

[27] The Respondent emphasised that the Affected Employees had not readied themselves to work on 6 and 7 March 2025, nor undertaken the necessary journey to arrive at work, expending time and resources. The Respondent further submitted that in the particular facts of the case, the work stoppages that occurred on 6 and 7 March 2025 were not ultimately caused by the cyclone, but because host worksites did not reopen on those dates. As such, the Respondent submitted that clause 15 could not apply.

[28] The Respondent submitted that clause 15.1 of the Award is appropriately constructed to limit clause 15 by reference to the words, "the existence of" and "employees exposed". The Respondent emphasised that on 6 and 7 March 2025, the inclement weather did not exist. The cyclone did not make landfall on 6 or 7 March 2025. The Respondent submitted that as the cyclone did not affect the region the Affected Employees would have worked in, the employees were not exposed to inclement weather as it did not exist at the relevant worksites, and clause 15 consequently does not apply.

[29] The Respondent submitted that the stand downs on the Affected Days were due to the host employers closing their worksites, rather than the inclement weather. The host employers determined it was not reasonable to reopen their worksites, and as such the Respondent did not order the Affected Employees to attend work.

[30] The Respondent submitted that s.524 displaced clause 15 of the Award and was the applicable provision in the circumstances. While submitting that clause 15 of the Award does not apply to the stoppages on the Affected Days, the Respondent agreed that if it did, then on that day any Affected Employee would be entitled to be paid their ordinary time.

[31] Mr Tom Emeleus is the General Manager of the Respondent. Mr Emeleus noted that on 5 March 2025, all Affected Employees, as well as all other apprentices in the region, were advised to comply with the directions of their host employer. Mr Emeleus emphasised that the Respondent did not determine whether host employers closed their worksites. Mr Emeleus also noted that the TAFE sites where some apprentices were due to attend were also closed.

[32] Mr Emeleus confirmed that the Respondent advised the Affected Employees that they were able to take paid leave or an RDO if they were stood down due to the stoppage of work and TAFE closures. He advised Mr Wood and other employees of the Respondent that "apprentices not covered by an EBA with cyclone/disaster leave were stood down lawfully and will not be paid", on the basis of an extract from the Fair Work Ombudsman's website. The relevant extract is "When there is a natural disaster, such as a bushfire or flood, other rules under the Fair Work Act may apply", and Mr Emeleus considered a cyclone to be a natural disaster within this context.

[33] Mr Emeleus stated that he was in a meeting when Mr Ellis attempted to contact him, and Mr Wood had notified Mr Emeleus that he had spoken with Mr Ellis. Mr Emeleus stated this was why he did not contact Mr Ellis.

[34] Mr Mark Wood is the Queensland Branch Manager of the NECA. On 4 March 2025, he sought instructions from Mr Emeleus as to what arrangements should be made for apprentices, including the Affected Employees, who were on worksites for host employers in the region on the Affected Days. On 5 March 2025, a host employer informed the Respondent that their worksites were going to be closed for the Affected Days. As such, Mr Wood and the Respondent informed the apprentices, including the Affected Employees, that they were to follow instructions from the host employers.

[35] Mr Wood gave evidence that the Respondent informed the Affected Employees they would need to take an RDO or annual leave because the Agreement did not explicitly contemplate cyclones, even though some of the host employer agreements do.

[36] Mr Wood stated that on 6 March 2025, the weather was calm, and the cyclone was not expected to hit until 7 March 2025. Mr Wood's opinion was that at that time, work could have been undertaken. Mr Wood sought advice as to how apprentices were to be paid from Mr Emeleus.

[37] Mr Wood spoke with Mr Ellis on 6 March 2025. Mr Wood told Mr Ellis that he had no direct involvement in payroll, but he had suggested that apprentices record 8 hours on their timesheets for Thursday, 6 March 2025 and Friday, 7 March 2025 and to put comments in for payroll to the effect of "unable to attend work due to cyclone". Mr Wood also suggested that Mr Ellis speak with Mr Emeleus, as he was in charge of payroll. Mr Wood also stated that Mr Ellis contacted him on multiple occasions, noting that Mr Emeleus had not yet contacted the CEPU.

[38] Mr Wood stated that the Respondent had not instructed the Affected Employees to take leave or RDOs, but rather simply stated to follow the directions of host employers. Mr Wood also notes that some apprentices attended work on 10 March 2025.

[39] The CEPU has brought this application because it considers that the Affected Employees are entitled to payment in respect of the Affected Days.

[40] The inclement weather clause of the Award is an additional, generous entitlement, over and above the express terms agreed within the Agreement by virtue of the Award underpinning the Agreement. It appears to me to be a shame that the employees previously had a direct benefit to an inclement weather clause when the 2022 Agreement applied, but this was lost when the Queensland agreement was made.

[41] The entitlement to paid leave crystalises when the conditions of clause 15 of the Award are met. If they are met, the Affected Employees will be paid and there will be no need for an examination of s.524 of the Act.

Are the Affected Employees entitled to paid leave in accordance with clause 15 of the Award?

[42] On 6 and 7 March 2025, despite all of the forecasted warnings, there was no inclement weather present in the relevant geographical area the subject of this dispute. That is, there was no abnormal and extreme climatic conditions present. It was expected that these conditions would be present, but as Tropical Cyclone Alfred changed course, the weather event did not happen on 6 and 7 March 2025.

[43] Understandably, relevant warnings were provided across the region by authorities. Schools were closed, TAFE was closed, services shut down and many employers did not require their employees to attend for work. It was a very unusual situation experienced by residents in South-East Queensland.

[44] There was not, however, inclement weather as defined in the Award. The conditions of clause 15 of the Award were not met on 6 or 7 March 2025 to satisfy the obligation on the Respondent to pay the Affected Employees.

[45] On 10 March 2025, however, there was inclement weather. Without doubt, there was the existence of abnormal and extreme climatic conditions. Save for emergency workers, it was not reasonable and not safe for the Relevant Employees to work on 10 March 2025.

[46] I do not accept the Respondent's submissions that clause 15 of the Award only applies when inclement weather prevails after an employee has commenced work. If that were the case, it would result in an absurdity where if the inclement weather was plainly evident at 6:00am, an employee would be expected to travel to work in unsafe conditions to commence work at say, 7:00am. Consultation would then occur, and an employee would then be sent home due to the inclement weather, forced again to travel in unsafe conditions. I consider the Respondent's reading of the provision to be far too narrow, and simply put, if an employee is going to be working, exposed to abnormal and extreme climatic conditions, and it is not reasonable or not safe to do so, it is inclement weather for the purposes of the clause and the trigger for payment.

[47] In the same way, if it was necessary to consider, in respect of transferring of a work site, I consider an employer could inform an employee before they commenced work that they are to work at an alternative site, free from inclement weather. The employee would not need to have commenced work at the first site to be transferred; the employer could direct them to attend an alternative site.

[48] I am satisfied that the Respondent determined for itself that on 10 March 2025, work could not safely be performed by the Affected Employees and that it was due to the conditions of the cyclone. On account of the Respondent's own determination of the abnormal and extreme climatic conditions, the obligation to consult about whether the conditions are prevalent does not arise. The employees did not request to confer on 10 March 2025, and the Respondent already determined for itself that it was not reasonable or not safe to work on that day.

[49] I am satisfied that the Relevant employees are entitled to payment by the Respondent for ordinary time lost through the inclement weather that prevailed on 10 March 2025.

Was the Respondent entitled to stand down employees pursuant to s.524 of the Act?

[50] The question in respect of 10 March 2025 has already been determined. The Affected Employees had an entitlement under the Agreement, by virtue of the underpinning Award to be paid while the inclement weather prevailed on 10 March 2025.

[51] The Affected Employees did not have an entitlement to paid leave on 6 and 7 March 2025. The question is then whether the Respondent was entitled to stand them down without pay on those days.

[52] The CEPU's argument that the Respondent cannot utilise s.524 of the Act because the Agreement incorporates the inclement weather provisions of the Award is flawed. Where the conditions of the clause are triggered, employees are permitted to paid leave and not required to attend work. The very fact that the entitlement is paid leave renders the argument that the employee is stood down moot.

[53] Accordingly, I do not conclude that, relevant to s.524(2)(b), the Agreement provides for the Respondent to stand down the employees during a time when they cannot usefully be engaged because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. That being so, the Respondent is entitled to utilise the provisions in s.524(1) of the Act.

[54] On 6 and 7 March 2025, the Respondent caused the Affected Employees to be stood down from work and from their TAFE studies on account of host employers temporarily closing their operations and TAFE temporarily closing its campuses. The Affected Employees could not usefully be employed because of a stoppage of work to which the Respondent could not reasonably be held responsible.

[55] The conditions of s.524(1) having been met, pursuant to s.524(3), the Respondent was not required to make payments to the Affected Employees for those two days.

[56] The questions for arbitration are answered as follows:

On the basis that clause 15 of the Award is incorporated into the Agreement:

1. Does section 524 of the Act operate to displace clause 15 of the Award in the circumstances?

No, because clause 15 of the Award provides for paid leave in certain circumstances and does not provide for stand down of employees.

2. If the answer to question 1) is no, does clause 15 of the Award apply to the Affected Employees for the Affected Days in these circumstances?

Yes, but only to the circumstances of 10 March 2025 and not 6 and 7 March 2025.

If the answer to question 2) is yes, are the Affected Employees entitled to be paid ordinary time for the Affected Days in these circumstances?

The Affected Employees are entitled to be paid ordinary time for 10 March 2025.

[57] The Respondent is required to pay to the Affected Employees ordinary time earnings for 10 March 2025. This ought to be paid to the Affected Employees in the next full pay period or earlier, if practicable.

C Murdoch KC and S Mackie, counsel for the Respondent

Printed by authority of the Commonwealth Government Printer

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ECA Training Pty Limited [2025] FWC 2775

At a glance

Court

Decision date

Source

Judgment (103 paragraphs)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ECA Training Pty Limited [2025] FWC 2775 (19 September 2025)

Parties

Legislation Cited (1)