Osmarc Pty Ltd [2025] FWCA 2538 (31 July 2025)

Application for approval of the OSMARC Pty Ltd, Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 and Associated Works

[1] Osmarc Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the OSMARC Pty Ltd, Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 and Associated Works (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009. An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive the irregularity in the form or manner in which the application was made and do so pursuant to s.586(b) of the FW Act.

[3] The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act are relevant to this application for approval has been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

[5] I observe that clauses 3.9(f) and 7.2 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 2.7(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 7 August 2025. The nominal expiry date of the Agreement is 31 July 2029.

I, Andrew McIntosh, HSEQ Manager have the authority given to me by Osmarc Pty Ltd to give the following undertakings with respect to the Enterprise Bargaining Agreement, Surface Work for Snowy Hydro 2.0 and Associated Works ("the Agreement"):

1. For the purposes of clause 5.1 and Appendix C, OSMARC Pty Ltd undertakes that it will only employ Apprentices who would otherwise be covered by the Building and Construction General On-site Award 2020.

These undertakings are provided on the basis of issues raised by Commissioner Ryan in the application before the Fair Work Commission.

Signature: ____________________

Date: __29/07/2025__________________

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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