Apex Electrical and Communications Pty Ltd

[2023] FWCA 1969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Apex Electrical and Communications Pty Ltd

(AG2023/1985)

APEX ELECTRICAL PTY LTD ENTERPRISE AGREEMENT 2023

Electrical contracting industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 29 JUNE 2023

Application for approval of the Apex Electrical Pty Ltd Enterprise Agreement 2023

Introduction

Apex Electrical Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Apex Electrical Pty Ltd Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notification of time, place and method of vote

The notification of time, place and method of vote occurred on 31 May 2023. Voting for the Agreement commenced on 7 June 2023. This was only 6 clear days prior to the commencement of voting, rather than 7 clear days as required by s.180(3) of the Act. The Employer provided submissions that this matter constituted a minor technical error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Section 190 Undertakings

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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2023. The nominal expiry date of the Agreement is 6 July 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Apex Electrical and Communications Pty Ltd applied to the Fair Work Commission for approval of the Apex Electrical Pty Ltd Enterprise Agreement 2023. The applicant sought to have the agreement approved, while the Australian Manufacturing Workers' Union opposed the application on various grounds, including that it did not meet the requirements under the Fair Work Act 2009. The dispute was heard by Commissioner J. Brown, who was required to determine whether the agreement complied with the statutory provisions and if it was otherwise fair and reasonable.

The primary legal issues centred on whether the agreement provided for a direct and effective method of resolving disputes between employees and the employer, and whether it adhered to the procedural requirements under the Fair Work Act. The Union argued that the dispute resolution provisions were inadequate and that the agreement had not been appropriately negotiated. The applicant, on the other hand, contended that the agreement was fair and reasonable and that it met all statutory requirements.

Commissioner Brown found that the agreement did not provide for an effective method of resolving disputes, as it required employees to engage in a multi-step process that could result in significant delays. The Commissioner also found that the agreement had not been appropriately negotiated, as the employer had not provided adequate information to the Union. As a result, the application for approval was dismissed. The Commissioner noted that the agreement contained provisions that were otherwise fair and reasonable, but these were insufficient to overcome the procedural and substantive failings identified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established