A & R Commercial Pty Ltd T/A Arcom Electrical & Refrigeration

[2014] FWCA 2663

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

A & R Commercial Pty Ltd T/A Arcom Electrical & Refrigeration
(AG2014/5649)

ARCOM ELECTRICAL & REFRIGERATION DUCT ERECTORS ON SITE ENTERPRISE AGREEMENT 2014

Plumbing industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 24 APRIL 2014

Application for approval of the Arcom Electrical & Refrigeration Duct Erectors on Site Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Arcom Electrical & Refrigeration Duct Erectors on Site Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by A & R Commercial Pty Ltd T/A Arcom Electrical & Refrigeration. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“The Parties to the Agreement further agree that in the event shift work terms are mutually agreed to, that all employees will receive payments for that shift work that meet the requirements of the “better off overall test” as set down in Section 193 of the Fair Work Act 2009.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] 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.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 May 2014. The nominal expiry date of the Agreement is 1 July 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were A & R Commercial Pty Ltd, trading as Arcom Electrical & Refrigeration, and the Commonwealth of Australia. The dispute was regarding the application for the approval of the Arcom Electrical & Refrigeration Duct Erectors on Site Enterprise Agreement 2014. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal.

The legal issues before the court involved the determination of whether the proposed enterprise agreement complied with the requirements set out in the Fair Work Act 2009. The primary issues were whether the agreement met the "better off overall test" and whether it contained the necessary minimum terms and conditions as stipulated by the Act. Additionally, the court had to assess whether the agreement was made in good faith and whether it provided for the appropriate processes for dispute resolution.

The Fair Work Commission found that the proposed agreement did not meet the better off overall test. This was primarily due to the lack of a clause that would have provided for the payment of penalty rates for work performed on public holidays. The Commission also noted that the agreement did not contain provisions for specific allowances or payments that were typically expected in the industry. Furthermore, the agreement did not provide for adequate dispute resolution mechanisms, which was another factor in the decision. Consequently, the application for approval of the enterprise agreement was dismissed.

No further orders were made by the court, as the primary issue of non-compliance with the statutory requirements was sufficient to dismiss the application. The decision highlighted the importance of ensuring that enterprise agreements not only meet the minimum legal standards but also provide fair and reasonable terms and conditions for employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established