E2O Pty Ltd [2026] FWCA 514 (10 March 2026)

[1] An application has been made for approval of a greenfields agreement known as the E2O Pty Ltd Perdaman Ceres Project Greenfields Agreement 2024 (the Agreement). The application was made by E2O Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).

[2] 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.

[3] In accordance with s 187(5)(a) of the Act, I am satisfied that the Construction, Forestry and Maritime Employees Union (the CFMEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) are 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.

[4] Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with these organisations and that the Agreement covers them.

[5] Pursuant to s 201(2A) of the Act I note the Agreement covers the CFMEU, CEPU and the AMWU.

[6] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[7] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

1. Personal Leave: Clause 26(6) of the Agreement provides that notice for personal leave should be provided, other than in extraordinary circumstances, within one hour of commencement of the absence. This appears more restricted than the personal leave notification requirements in s 107 of the Act, which states that notice should be provided as soon as practicable, which may be at a time after the commencement of the leave.

2. Compassionate Leave: The entitlement to compassionate leave provided by Clause 28 of the Agreement does not appear to provide for the stillbirth of a child of the employee or a member of the employee's immediate family or household as per s 105(1)(b) of the Act, or after the employee or the employee's spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

3. Family Violence Leave: Clause 30(3) entitles employees to 10 days unpaid leave as opposed to 10 days paid as per s 106A of the Act.

4. Public Holiday: Clause 27(4) of the Agreement provides that the employer and a majority of employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s 115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee.

[8] However, I am satisfied that under clause 4.1 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 17 March 2026. The nominal expiry date of the Agreement is 9 May 2028.

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