Application for approval of the DTI NSW ELECTRICAL ROAD INFRASTRUCTURE ENTERPRISE AGREEMENT 2025

[1] This decision concerns an application for approval of the DTI Electrical Road Infrastructure Enterprise Agreement 2025 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by DT Infrastructure Pty Ltd (the Applicant). The Agreement is a single enterprise agreement. The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

[2] Section 187(4) of the FW Act requires the Fair Work Commission to be satisfied as to the requirements relating to particular kind of employees referred to in Subdivision E of Part 2-4 of the FW Act. Shiftworkers are such a group of employees. The relevant approval requirements that apply to shiftworkers are set out at section 196 of the FW Act. The Agreement contains a definition of a continuous shiftworker at clause 2. I raised a concern with the Applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which was a bargaining representative for the Agreement, and another bargaining representative, in relation to shiftworkers. The concern being that the Agreement does not appear to define or describe an employee as a shiftworker for the purpose of the National Employment Standards (NES). The Applicant proposed an undertaking to meet this concern. The Commission sought the views of the CEPU and the other bargaining representative as to the undertaking. The CEPU and the other bargaining representative did not express a view about the undertaking. I accept the undertaking. In particular, I am satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[3] Section 205A of the FW Act provides that an enterprise agreement must include a delegates' rights term. The relevant modern award is the Electrical, Electronic and Communications Contracting Award 2020. Clause 26A of that award contains a delegates' rights term. I raised a concern with the Applicant, the CEPU, and the other bargaining representative that the Agreement does not appear to contain a delegates' rights term and, if that was right, clause 26A would be taken to be a term of the Agreement. The Applicant proposed an undertaking to address this concern. The CEPU and the other bargaining representative did not express a view about the undertaking. In accordance with section 205A(2) of the FW Act, clause 26A of the Electrical, Electronic and Communications Contracting Award 2020 is taken to be a term of this Agreement.

[4] Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised a concern with the Applicant, the CEPU and the other bargaining representative about the notice of termination requirements in clauses 40.3 and 40.4 of the Agreement. The concern being that those clauses appear to be inconsistent with the NES. I sought confirmation as to whether the Applicant intended to rely upon clause 4.1 of the Agreement, which can be best described as a NES precedence clause, to resolve any such concern or propose an undertaking. The Applicant confirmed that it intends to rely upon clause 4.1 of the Agreement. Based upon that confirmation from the Applicant, the requirement in section 186(2)(c) is satisfied.

[5] Section 186(2)(d) of the FW Act requires the Fair Work Commission to be satisfied that the Agreement passes the better off overall test (BOOT). The assessment as to whether the Agreement passes the BOOT is applied in accordance with section 193A of the FW Act. In considering the application, I raised a concern with the Applicant, the CEPU and the other bargaining representative concerning trainees. Clause 1.1 of the Agreement provides that the Agreement covers all employees described including apprentices and trainees. The concern being that the Agreement does not provide wage rates for Trainees. That gives rise to a difficulty as to how trainees could be assessed against the BOOT. In response to this concern, the Applicant submitted that for the purpose of the Agreement the terms Trainee or Trainees are taken to have no application to the Agreement and no worker covered by the Agreement shall be engaged as a Trainee. The CEPU and the other bargaining representative did not express a view about that submission, or this issue more broadly. I accept the Applicant's submission and have determined that it is not reasonably foreseeable that trainees will be engaged under the Agreement. As such, in applying the BOOT consistent with section 193A(6) of the FW Act, I have not had regard to trainees.

[6] Based on the material provided by the Applicant and the CEPU, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

[7] Section 201 of the FW Act requires the approval decision to note certain matters. The first such matter that is relevant to this application is section 201(1A) of the FW Act. I note that clause 26A of the Electrical, Electronic and Communications Contracting Award 2020, which is a delegates' right term in a modern award, is taken to be a term of this Agreement because of section 205A(2) of the FW Act. The second such matter is that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which was a bargaining representative for the Agreement, has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The third such matter that is relevant to this application is section 201(3) of the FW Act. I note that the Agreement is approved with the attached undertaking, which is taken to be a term of the Agreement.

[8] The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 5 September 2025. The nominal expiry date of the Agreement is 29 August 2028.

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