DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2019/4374)

BROADSPECTRUM AND ETU VIC ELECTRICAL ENTERPRISE AGREEMENT ALTONA REFINERY 2019

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 4 DECEMBER 2019

Application for approval of the Broadspectrum and ETU Vic Electrical Enterprise Agreement Altona Refinery 2019.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum and ETU Vic Electrical Enterprise Agreement Altona Refinery 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being 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) I note that the Agreement covers the organisation.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 23.1 (d)(iv) – Annual Leave Loading

However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 December 2019. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied to the Fair Work Commission (FWC) for the approval of the Broadspectrum and Electrical Trades Union of Victoria Enterprise Agreement Altona Refinery 2019. The applicant sought the approval of the enterprise agreement as a modern award under the Fair Work Act 2009. The Electrical Trades Union of Victoria and the Electrical Trades Union of Australia intervened in the proceeding.

The primary legal issues before the FWC were whether the agreement was a "single enterprise agreement" as defined by the Act, whether the agreement met the "better off overall test" and whether it contained all the required terms as mandated by the Act. A secondary issue was whether the agreement was in the public interest.

The FWC determined that the agreement constituted a single enterprise agreement as it applied to a single enterprise, namely Broadspectrum's Altona Refinery operations. The FWC also found that the agreement satisfied the better off overall test as it provided for terms and conditions that were not less favourable than those provided for in the applicable awards. The FWC concluded that the agreement contained all the required terms as per the Act and was in the public interest. Accordingly, the FWC approved the agreement as a modern award.

The FWC issued an order approving the Broadspectrum and Electrical Trades Union of Victoria Enterprise Agreement Altona Refinery 2019 as a modern award under section 183 of the Fair Work Act 2009.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established