Electrical Design And Construction Pty Ltd Trading AS Electrical Design And Construction

ELECTRICAL DESIGN AND CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT - 2025/2028

Application for approval of the Electrical Design and Construction Pty Ltd Enterprise Agreement 2025/2028

[1] An application has been made for approval of a single enterprise agreement known as the Electrical Design and Construction Pty Ltd Enterprise Agreement - 2025/2028 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Electrical Design and Construction Pty Ltd (employer).

[2] The Application disclosed that there were no bargaining representatives for the employees covered by the Agreement. Prior to approving the agreement, it was necessary to make some further enquiries of the employer relating to following matters:

(a) The Flexibility Term at clause 9 of the Agreement did not appear to require the employer to ensure that any individual flexibility arrangement agreed to is about matters that would be permitted matters. Nor did it appear to require the employer to ensure that any individual flexibility arrangement agreed to does not include a term that would be an unlawful term. These are requirements under section 203 of the Act. If that is a correct reading of the term, then if the Agreement is approved the model flexibility term would be taken to be a term of the agreement. The employer was invited to express a view about this issue.

(b) The Agreement did not appear to contain any clause requiring consultation concerning changes to employees' regular rosters or ordinary hours of work. This is a requirement under sections 205(1)(a)(ii) and 205(1A) of the Act. If that is a correct reading of the Agreement, then if the Agreement is approved the model consultation term would be taken to be a term of the agreement. The employer was invited to express a view about this issue.

(c) The Agreement does not appear to contain any workplace delegates' rights clause. This is a requirement under section 205A of the Act. This may be able to be remedied by way of variation made under section 218A of the Act in conjunction with the approval decision, as was done in Resourceco [2025] FWCA 642. The employer was asked if it was content with varying the Agreement to include clause 26A of the Electrical, Electronic and Communications Contracting Award 2020 (renumbered as clause 47A of the Agreement to avoid interrupting the flow of the content of the Agreement).

(d) Clause 26.4 of the Agreement, dealing with personal leave, provided that employees shall advise the company within 2 hours of their scheduled starting time, of their intended absence. This appeared to provide a more restrictive notice requirement than permitted by s.107(2)(a) of the Act. The employer was invited to make submissions as to whether the NES precedence term at clause 6.2 of the Agreement adequately addresses this issue or whether an undertaking is required.

(e) Clause 39.3 of the Agreement provided that if an employee fails to give the required notice for termination, then the employee forfeits the entitlement to any monies owing to them equal to the amount of notice not given. It was noted that this provision does not appear to limit the source of monies which may be deducted to wages only, so in essence would authorise deductions from accrued entitlements that are required to be paid out on termination. The employer was invited to make submissions as to whether the NES precedence term at clause 6.2 adequately addresses this issue or whether an undertaking is required. The employer was invited to consider the terms of clause 30.1(d) of the Electrical_, Electronic and Communications Contracting Award 2020_ for comparison in addressing this issue.

(f) Item 25 of the employer's F17B indicated that employees were notified via an e-mail on 13 August 2025 that the vote would occur on 20 August 2025. This is less than 7 full calendar days. In addition, the method and location of the vote was not provided to employees within the email which gave notice. These events suggest that paragraphs 15 and 16 of the Statement of Principles on Genuine Agreement were not complied with. The Commission is required by section 188 to take the Statement of Principles on Genuine Agreement into account in deciding whether the Agreement was genuinely agreed to. The employer was invited to make any submissions under 188(5)(c) as to whether or not the employees were likely to have been disadvantaged by these matters.

[3] In correspondence with chambers, the following resolutions were reached in respect of these issues:

• (a) It was acknowledged and accepted that the model flexibility term would be taken to be a term of the Agreement.

• (b) It was acknowledged and accepted that the model consultation term would be taken to be a term of the Agreement.

• (c) It was accepted that variation of the Agreement under clause 218A was available and appropriate to remedy the defect of the Agreement not containing a workplace delegates' rights clause.

• (d) An undertaking was offered to deal with the concern regarding the notice requirements for personal leave.

• (e) An undertaking was offered to deal with the concern regarding deductions from the entitlements of employees who had given notice of their termination.

(f) In response to the concern regarding the voting process, the employer submitted that the failure to provide 7 calendar days' notice of the voting method and location was a minor procedural error that was capable of being disregarded under section 188(5)(c) on the basis that employees were not likely to have been disadvantaged. Reliance was placed on the decision of the Full Bench in Huntsman Chemical Company[1] in this regard. I accept that, notwithstanding some intervening legislative change, the decision remains good authority for the proposition that errors of this type may be taken to be "in relation to" the voting requirement specified in section 182(1). I further accept that the error was a minor one, and that the evidence of a high level of participation in the vote (83%) and unanimous support among those who did vote is inconsistent with there having been any disadvantage experienced in the capacity to exercise a vote. In the circumstances, I am satisfied that the concern regarding genuine agreement has been addressed.

[4] Subject to the undertakings referred to above and having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met. The undertaking is taken to be at term of the Agreement and is provided at Annexure A of this decision. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to section 205(2), the model consultation term is taken to be a term of the Agreement. Pursuant to section 202(4), the model flexibility term is taken to be a term of the agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2025. The nominal expiry date of the Agreement is 30 June 2028.

[6] As noted above, I have decided to vary the Agreement pursuant to section 218A. There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[2] The variations that I order are as follows:

• (a) Clause 47A of the Agreement will be added to the end of the Agreement, as follows:

47A.1 Clause 47A provides for the exercise of the rights of workplace delegates set out in section 350C of the Act.

NOTE: Under section 350C(4) of the Act, the employer is taken to have afforded a workplace delegate the rights mentioned in section 350C(3) if the employer has complied with clause 47A.

(a) employer means the employer of the workplace delegate;

(b) delegate's organisation means the employee organisation in accordance with the rules of which the workplace delegate was appointed or elected; and

(c) eligible employees means members and persons eligible to be members of the delegate's organisation who are employed by the employer in the enterprise.

47A.3 Before exercising entitlements under clause 47A, a workplace delegate must give the employer written notice of their appointment or election as a workplace delegate. If requested, the workplace delegate must provide the employer with evidence that would satisfy a reasonable person of their appointment or election.

47A.4 An employee who ceases to be a workplace delegate must give written notice to the employer within 14 days.

A workplace delegate may represent the industrial interests of eligible employees who wish to be represented by the workplace delegate in matters including:

(a) consultation about major workplace change;

(b) consultation about changes to rosters or hours of work;

(c) resolution of disputes;

(d) disciplinary processes;

(e) enterprise bargaining where the workplace delegate has been appointed as a bargaining representative under section 176 of the Act or is assisting the delegate's organisation with enterprise bargaining; and

(f) any process or procedure within an award, enterprise agreement or policy of the employer under which eligible employees are entitled to be represented and which concerns their industrial interests.

(a) A workplace delegate may communicate with eligible employees for the purpose of representing their industrial interests under clause 47A.5. This includes discussing membership of the delegate's organisation and representation with eligible employees.

(b) A workplace delegate may communicate with eligible employees during working hours or work breaks, or before or after work.

47A.7 Entitlement to reasonable access to the workplace and workplace facilities

(a) The employer must provide a workplace delegate with access to or use of the following workplace facilities:

(i) a room or area to hold discussions that is fit for purpose, private and accessible by the workplace delegate and eligible employees;

(ii) a physical or electronic noticeboard;

(iii) electronic means of communication ordinarily used in the workplace by the employer to communicate with eligible employees and by eligible employees to communicate with each other, including access to Wi-Fi;

(iv) a lockable filing cabinet or other secure document storage area; and

(v) office facilities and equipment including printers, scanners and photocopiers.

(b) The employer is not required to provide access to or use of a workplace facility under clause 47A.7(a) if:

(i) the workplace does not have the facility;

(ii) due to operational requirements, it is impractical to provide access to or use of the facility at the time or in the manner it is sought; or

(iii) the employer does not have access to the facility at the enterprise and is unable to obtain access after taking reasonable steps.

47A.8 Entitlement to reasonable access to training

Unless the employer is a small business employer, the employer must provide a workplace delegate with access to up to 5 days of paid time during normal working hours for initial training and at least one day each subsequent year, to attend training related to representation of the industrial interests of eligible employees, subject to the following conditions:

(a) In each year commencing 1 July, the employer is not required to provide access to paid time for training to more than one workplace delegate per 50 eligible employees.

(b) The number of eligible employees will be determined on the day a delegate requests paid time to attend training, as the number of eligible employees who are:

• (i) full-time or part-time employees; or

• (ii) regular casual employees.

(c) Payment for a day of paid time during normal working hours is payment of the amount the workplace delegate would have been paid for the hours the workplace delegate would have been rostered or required to work on that day if the delegate had not been absent from work to attend the training.

(d) The workplace delegate must give the employer not less than 5 weeks' notice (unless the employer and delegate agree to a shorter period of notice) of the dates, subject matter, the daily start and finish times of the training, and the name of the training provider.

(e) If requested by the employer, the workplace delegate must provide the employer with an outline of the training content.

(f) The employer must advise the workplace delegate not less than 2 weeks from the day on which the training is scheduled to commence, whether the workplace delegate's access to paid time during normal working hours to attend the training has been approved. Such approval must not be unreasonably withheld.

(g) The workplace delegate must, within 7 days after the day on which the training ends, provide the employer with evidence that would satisfy a reasonable person of their attendance at the training.

47A.9 Exercise of entitlements under clause 47A

(a) A workplace delegate's entitlements under clause 47A are subject to the conditions that the workplace delegate must, when exercising those entitlements:

• (i) comply with their duties and obligations as an employee;

• (ii) comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;

• (iii) not hinder, obstruct or prevent the normal performance of work; and

• (iv) not hinder, obstruct or prevent eligible employees exercising their rights to freedom of association.

(b) Clause 47A does not require the employer to provide a workplace delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees.

(c) Clause 47A does not require an eligible employee to be represented by a workplace delegate without the employee's agreement.

NOTE: Under section 350A of the Act, the employer must not:

(a) unreasonably fail or refuse to deal with a workplace delegate; or

(b) knowingly or recklessly make a false or misleading representation to a workplace delegate; or

(c) unreasonably hinder, obstruct or prevent the exercise of the rights of a workplace delegate under the Act or clause 47A.

(b) The table of contents and page numbering to be updated accordingly.

[7] These amendments will be reflected in a separate order and will take effect on the date of this decision. A copy of the Agreement as varied is provided with this decision.

[1] [2019] FWCFB 318

[2] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

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