DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Communication Exchange Limited
(AG2017/2263)

AUSTRALIAN COMMUNICATION EXCHANGE LIMITED – ENTERPRISE AGREEMENT 2016

Telecommunications services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 21 AUGUST 2017

Application for approval of the Australian Communication Exchange Limited – Enterprise Agreement 2016 – Agreement approved with undertakings.

[1] As stated in my decision issued on 11 August 2017 ([2017] FWC 4197) an application was received by the Fair Work Commission (the Commission) on 16 June 2017 for approval of an enterprise agreement known as the Australian Communication Exchange Limited – Enterprise Agreement 2016 (the Agreement). The application was made by Australian Communication Exchange Limited (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] In the Decision I requested that undertakings be provided by the Applicant in respect of several issues and indicated that subject to the provision of acceptable undertakings in respect of those issues that the Agreement would be approved.

[3] On 21 August 2017 the Applicant provided acceptable undertakings which address my concerns. A copy of the undertakings is attached at Annexure A.

[4] 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.

[5] Pursuant to s.190(4) of the Act the Applicant provided a copy of the attached undertakings to The Australian Municipal and Clerical Services Union, Queensland Together Branch (the ASU). The ASU did not express any concerns regarding the undertakings in its response to the Applicant.

[6] Against that background, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] As noted, pursuant to s.190(3), I have accepted the attached undertakings from the Applicant. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement.

[8] The ASU has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 August 2017. The nominal expiry date of the Agreement is 21 August 2020.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to approve the Australian Communication Exchange Limited – Enterprise Agreement 2016, with the Australian Communication Exchange Limited and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) as the parties involved. The dispute centred on the terms and conditions of employment for employees within the scope of the proposed agreement. The FWC had to determine whether the agreement met the legal requirements for approval, including whether it provided for fair and reasonable terms and conditions of employment and complied with the relevant legislative provisions.

The key legal issues before the FWC were whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the statutory requirements under the Fair Work Act 2009. The FWC also had to consider whether the agreement included any provisions that were contrary to public policy or otherwise unenforceable. In assessing these issues, the FWC took into account submissions from both parties, as well as relevant legislation and case law.

The FWC found that the agreement provided for fair and reasonable terms and conditions of employment for the employees covered by it. The FWC noted that the agreement contained provisions for minimum rates of pay, leave entitlements, and other employment conditions that were consistent with industry standards. However, the FWC also found that certain provisions of the agreement were contrary to public policy and unenforceable. As a result, the FWC approved the agreement with undertakings from the employer to remove these unenforceable provisions.

The FWC's final order was that the Australian Communication Exchange Limited – Enterprise Agreement 2016 be approved with the condition that the employer remove the unenforceable provisions within a specified timeframe. The FWC also directed that the agreement be registered with the Fair Work Commission. This decision provides guidance for employers and employees on the types of provisions that may be considered contrary to public policy and unenforceable under the Fair Work Act.

Australian Communication Exchange Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established