DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brimar Electrical Services Pty Ltd T/A Brimar
(AG2016/3146)

BRIMAR EMPLOYEE COLLECTIVE AGREEMENT 2016

Electrical contracting industry
COMMISSIONER ROE	SYDNEY, 15 JULY 2016

Application for approval of the Brimar Employee Collective Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Brimar Employee Collective Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Brimar Electrical Services Pty Ltd T/A Brimar. The Agreement is a single enterprise agreement.

[2] The Applicant has 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.

[3] 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 15 July 2016 and, in accordance with s.54, will operate from 22 July 2016. The nominal expiry date of the Agreement is 22 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Brimar Electrical Services Pty Ltd, trading as Brimar, applied to the Fair Work Commission for approval of the Brimar Employee Collective Agreement 2016. The application was made in the context of the Fair Work Act 2009, which provides for the making and approval of employee agreements that are free of certain unfair content. The dispute involved whether the agreement met the criteria for approval as a lawful agreement, free from prohibited content.

The legal issues before the Commission centred on the interpretation and application of sections of the Fair Work Act, particularly concerning whether the agreement contained any provisions that were contrary to public policy or not genuinely intended to be binding. Key points of contention included whether certain clauses regarding the waiver of rights and the resolution of disputes were valid and enforceable.

The Commission held that the agreement, while containing some problematic clauses, was not entirely invalid. The Commission exercised its power under section 234 of the Fair Work Act to disregard the parts of the agreement that contravened the Act, and to otherwise approve the agreement. The decision was based on the principle that where an agreement is otherwise bona fide and lawful, the Commission can excise offending provisions and approve the remaining parts. The Commission found that the remaining provisions were consistent with the spirit and purpose of the Fair Work Act.

The final orders of the Commission were that the Brimar Employee Collective Agreement 2016 be approved with the specified clauses excised, and the agreement otherwise in force. This decision ensures that the agreement operates as intended, while removing any content that was inconsistent with the legislative framework governing industrial relations in Australia.

Brimar Electrical Services Pty Ltd T/A Brimar

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established