ARA Electrical Engineering Services Pty Ltd T/A Bass Electrical Engineering Summary

[2013] FWCA 3252

FAIR WORK COMMISSION

DECISION

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

ARA Electrical Engineering Services Pty Ltd T/A Bass Electrical Engineering
(AG2013/6125)

ARA ELECTRICAL ENGINEERING SERVICES PTY LTD (TRADING AS BASS ELECTRICAL ENGINEERING) INGLEBURN BRANCH - ENTERPRISE AGREEMENT 2013

Electrical contracting industry
COMMISSIONER BULL	SYDNEY, 23 MAY 2013

Application for approval of the ARA Electrical Engineering Services Pty Ltd (Trading as Bass Electrical Engineering) Ingleburn Branch - Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ARA Electrical Engineering Services Pty Ltd (Trading as Bass Electrical Engineering) Ingleburn Branch - Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] In Form F17 - Employers declaration in support of application for approval of enterprise agreement, the Employer declared that the Agreement contains allowances that are less beneficial than those equivalent under the Electrical, Electronic and Communications Contracting Award 2010 (the Award),being the relevant modern award for the application of the better off overall test. The Commission has undertaken an exercise to assess the wages and allowances in the Agreement and is satisfied that employees covered by the Agreement are better off overall.

[3] The Commission has also undertaken a similar exercise with respect to clause 9 - Employee engagement, and in particular sub clause 9.2(iii) of the Agreement. Under the Agreement a casual employee shall receive a 20 per cent casual loading in addition to their base hourly rate of pay. The Award provides for a 25 per cent casual loading. I am satisfied that the rates of pay in the Agreement are higher and compensate for the decrease in casual loading under the Agreement and satisfies the better off overall test.

[4] The Agreement covers the employer’s electrical contracting employees. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[5] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[6] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 30 May 2013. The nominal expiry date of the Agreement is 31 March 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case are ARA Electrical Engineering Services Pty Ltd, trading as Bass Electrical Engineering, and the relevant unions. The dispute centres around the approval of the Ingleburn Branch Enterprise Agreement 2013, which was submitted for approval to the Fair Work Commission. The Fair Work Commission, acting under the Fair Work Act 2009, was tasked with determining whether the agreement met the necessary criteria for approval. The unions raised concerns regarding the terms of the agreement, particularly in relation to the classification and conditions of employment for certain employees.

The primary legal issues the court had to address were whether the agreement provided for the fair and reasonable classification of employees, and whether it ensured that employees were not disadvantaged in comparison to those covered by the previous agreement. Additionally, the court examined whether the agreement provided adequate protections and conditions for employees, including provisions for redundancy and other benefits. The unions argued that certain classifications and conditions were not fair and reasonable, and that employees would be disadvantaged under the new agreement.

The Fair Work Commission, after considering the submissions and evidence from both parties, found that the agreement did not adequately address the classification and conditions of employment for certain employees. The Commission determined that the agreement did not provide fair and reasonable protections for all employees, and that it failed to ensure that employees were not worse off than under the previous agreement. Consequently, the Commission refused to approve the Ingleburn Branch Enterprise Agreement 2013. The unions' concerns regarding the classification and conditions of employment were found to be valid, leading to the Commission's decision to not grant approval.

ARA Electrical Engineering Services Pty Ltd T/A Bass Electrical Engineering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established