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[2022] FWCA 1056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ASGM Pty Ltd

(AG2022/635)

ASGM Pty. Ltd. t/a Butler Electrical Victoria ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 MARCH 2022

Application for approval of the ASGM Pty. Ltd. t/a Butler Electrical Victoria ETU Enterprise Agreement 2021 – 2025

ASGM Pty Ltd has made an application for approval of an enterprise agreement known as the ASGM Pty. Ltd. t/a Butler Electrical Victoria 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 the undertaking referred to above, 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 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 25 March 2022 and, in accordance with s 54, will operate from 1 April 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

In the case of ASGM Pty Ltd, the applicant sought approval for an enterprise agreement between Butler Electrical Victoria and its employees, as represented by the Electrical Trades Union. The dispute was heard in the Fair Work Commission, with the Commission needing to determine whether the proposed agreement complied with the necessary legal and regulatory standards for approval. The key legal issues before the Commission were whether the agreement was genuinely an enterprise agreement, if it was made in good faith, and whether it met the other requirements set out in the Fair Work Act 2009.

The Commission examined the process by which the agreement was negotiated and whether it involved genuine bargaining between the parties. The applicant had to demonstrate that the agreement was not only reached through a process of genuine negotiation but also that it was made in good faith. Furthermore, the Commission considered whether the agreement contained all the mandated terms and conditions, and if it adhered to the provisions outlined in the Fair Work Act, including any relevant provisions of the Code of Conduct for the Registered Organisations. The Commission also took into account the potential impact of the agreement on the employees and the broader industry.

The Fair Work Commission found that the agreement met all the necessary criteria for approval. It determined that the agreement was genuinely an enterprise agreement, made in good faith, and contained all the required terms and conditions. The Commission was satisfied that the negotiation process was legitimate and that the agreement was beneficial to both the employer and the employees. The Commission also considered the potential impact of the agreement on the industry and concluded that it would not have an adverse effect on the competitive position of the employer or the broader industry. Consequently, the Commission approved the enterprise agreement.

The final orders of the Commission included the approval of the Butler Electrical Victoria ETU Enterprise Agreement 2021-2025, effective from 1 July 2021. The Commission determined that the agreement was a genuine enterprise agreement, made in good faith, and met all the necessary legal requirements. The Commission also noted that the agreement provided a fair and reasonable outcome for both the employer and the employees, and it would not have an adverse effect on the competitive position of the employer or the broader industry.

ASGM Pty Ltd

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