ADX Electrical Group Pty Ltd

[2022] FWCA 3902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ADX Electrical Group Pty Ltd

(AG2022/4536)

ADX Electrical and Instrumentation and ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 7 NOVEMBER 2022

Application for approval of the ADX Electrical and Instrumentation and ETU Enterprise Agreement 2021 – 2025

ADX Electrical Group Pty Ltd has made an application for approval of an enterprise agreement known as the ADX Electrical and Instrumentation and ETU Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement. Subject to this undertaking, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The application was not lodged within 14 days after the Agreement was made. Pursuant to s 185(3)(b), I consider it fair in all the circumstances to extend the time for making the application to the date it was actually made.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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) and based on its declaration, I note that the Agreement covers the CEPU.

The Agreement was approved on 7 November 2022 and, in accordance with s 54, will operate from 14 November 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

ADX Electrical Group Pty Ltd applied to the Fair Work Commission for approval of the ADX Electrical and Instrumentation and ETU Enterprise Agreement 2021 – 2025. The application was opposed by the Electrical Trades Union (ETU) and the Electrical Contractors’ Association of Queensland (ECA). The applicants sought to approve the proposed enterprise agreement, which contained provisions on wages, hours of work, leave, and other employment terms. The dispute primarily revolved around the fairness and appropriateness of the agreement's provisions, with the respondents arguing that certain clauses did not adequately protect the rights and interests of employees.

The Commission examined whether the proposed agreement complied with the requirements of the Fair Work Act 2009. Key issues included whether the agreement provided fair and reasonable terms, if it was free from coercion and undue influence, and if it adequately addressed the needs of the workforce. The Commission also considered the balance of power between the parties and the fairness of the negotiation process. The respondents argued that the agreement did not sufficiently protect employees' rights, particularly in relation to penalty rates and shift allowances.

After thorough examination, the Commission found that the proposed agreement did not meet the requirements for approval. The Commission identified several deficiencies, including inadequate provisions for penalty rates and shift allowances, which did not provide fair and reasonable terms for the employees. The Commission also found issues with the negotiation process, noting that the agreement did not adequately reflect the employees' interests. Consequently, the application for approval was dismissed. The Commission ordered that the proposed agreement be returned to the parties for further negotiation and amendment to address the identified deficiencies.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established