[2025] FWCA 2913

Fair Work Act 2009

s.185 - Enterprise agreement

SC HYDRO PTY LTD AND THE AUSTRALIAN WORKERS' UNION-SNOWY 2.0 PROJECT UNDERGROUND WORKS PROJECT AGREEMENT 2025 - 2029

Application for approval of the SC Hydro Pty Ltd and the Australian Workers' Union-Snowy 2.0 Project Underground Works Project Agreement 2025 - 2029

[1] SC Hydro Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the SC Hydro Pty Ltd and the Australian Workers' Union-Snowy 2.0 Project Underground Works Project Agreement 2025 - 2029 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

[2] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 13 December 2024 and the Agreement was made on 23 July 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

[3] The NERR was given to an employee on 9 January 2025, being 27 days after the notification time of 13 December 2024. It would appear from this, that not all employees who were employed at the time of notification were given the NERR within 14 days of the notification time as required by s.173(3) of the Act. The Employer provided additional information to justify why certain employees were given or had access to the NERR beyond the 14 days requirement in the Act. The Employer notes that there were IT concerns about whether all employees received the NERR on 13 December 2024 and submits that this matter constituted a minor technical error.

[4] I am satisfied having regard to this additional information and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

National Employment Standards (NES) Precedence Term

[5] Clause 7.3(b) of the Agreement does not appear to be triggered after 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.

[6] Clause 7.9(f) of the Agreement provides that the employer and a majority of the affected employee(s) may substitute a public holiday for another day.

[7] These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 2.7(c) of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

[8] I sought submissions regarding ss. 188 and 186 of the Act and the Statement of Principles on Genuine Agreement. Having considered those submissions, the filed documents and having had regard to the Statement of Principles on Genuine Agreement, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[9] The Construction, Forestry and Maritime Employees Union (CFMEU), the Australian Workers' Union (AWU), 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 (AMWU) being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them.

[10] In accordance with s.201(2), I note that the Agreement covers the CFMEU, AWU, CEPU and AMWU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 September 2025. The nominal expiry date of the Agreement is 1 May 2029.

[1] [2019] FWCFB 318.

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