Application by Jelani Pty Ltd T/A Matera Electrical Services

[2022] FWCA 3419

[2022] FWCA 3419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Application by Jelani Pty Ltd T/A Matera Electrical Services

(AG2022/3980)

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 5 OCTOBER 2022

Application for approval of the Matera Electrical Services - Pluto Train 2 Project Agreement

1. Jelani Pty Ltd T/A Matera Electrical Services (the Employer) has applied for approval of an enterprise agreement known as the Matera Electrical Services - Pluto Train 2 Project Agreement (the Agreement). The application was made pursuant to s.185 the Fair Work Act 2009 (the Act).  The Agreement is a greenfields agreement.

1. This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.  The Australian Manufacturing Workers’ Union (AMWU), Australian Workers’ Union (AWU), Construction Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) each submitted a F21 indicating they wished to be covered by the Agreement. Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AMWU, AWU, CFMMEU and CEPU, and that the Agreement covers the organisations.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU, AWU, CFMMEU and CEPU are entitled to the represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the AMWU, AWU, CFMMEU and CEPU regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.  

1. 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.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I indicated to the Employer my view that the Agreement did not contain a model flexibility term as required by s.202 of the Act, and that in the event of approval, the model flexibility term would be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 is attached at Annexure B to the Agreement and taken to be a term of it.

1. I also indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205(1A) of the Act, and that in the event of approval,  the model flexibility term would be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model consultation term prescribed by Schedule 2.3 to the Fair Work Regulations 2009 is attached at Annexure C to the Agreement and taken to be a term of it.

1. Appendix 3(8) of the Agreement provides that the Employer may deduct the cost of a forward journey fare from a distant worker who terminates or discontinues employment before completing two weeks project working hours of service on the site and who does not forthwith return to their place of engagement. Further, clause (11)(d)(ii) and appendix 4(5)(c) provides that the Employer may also deduct where rest and recreation leave is taken in advance. I raised with the Employer my views relevant to s.324 of the Act, suggesting that these terms may be likely unenforceable. In written correspondence, the Employer acknowledged that these terms may be unenforceable as deductions contrary to s.324 of the Act.

1. I have taken into consideration the material filed in the Commission. 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.  The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and s.186(3A), I am satisfied that the group of employees was fairly chosen. I am also satisfied that it is in the public interest to approve the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 October 2022.  The nominal expiry date of the Agreement is 5 October 2026.

COMMISSIONER

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ANNEXURE A

ANNEXURE B

ANNEXURE C