Bromar Electrical Services (Aust) Pty Ltd

[2014] FWCA 3331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bromar Electrical Services (Aust) Pty Ltd
(AG2014/802)

BROMAR ELECTRICAL SERVICES (AUST) PTY LTD ENTERPRISE AGREEMENT 2014 - 2018

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	CANBERRA, 20 MAY 2014

Application for approval of the Bromar Electrical Services (Aust) Pty Ltd Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Bromar Electrical Services (Aust) Pty Ltd Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bromar Electrical Services (Aust) Pty Ltd. 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 notice of employee representational rights issued by the Applicant to employees of Bromar Electrical Services (Aust) Pty Ltd did not strictly comply with the prescribed form as required under s. 174 of the Act. This is because it referred to “Fair Work Australia” instead of “Fair Work Commission”. It is obvious that the Applicant had used the form approved prior to 1 January 2013. I am however satisfied that s. 25B of the Acts Interpretation Act 1901 applies to the notice with the consequence that reference to “Fair Work Australia” is taken to be of reference to “Fair Work Commission”. The provisions of s. 174 do not express a contrary intention which would have the result that s. 25B not apply. In the circumstances I am also satisfied the issuing of the notice in the form pre-2013 did not have any effect on the employee’s rights to appoint a bargaining representative.

[6] The Agreement was approved on 20 May 2014 and, in accordance with s.54, will operate from 27 May 2014. The nominal expiry date of the Agreement is 20 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission received an application for the approval of an enterprise agreement between Bromar Electrical Services (Aust) Pty Ltd and its employees. The applicant, Bromar Electrical Services, sought to finalise the terms of employment for its workers under the proposed agreement. The nature of the dispute involved the interpretation and approval of the terms and conditions set forth in the agreement, ensuring compliance with relevant industrial laws.

The primary legal issues the commission was required to decide included whether the agreement met the procedural and substantive requirements under the Fair Work Act 2009. This involved verifying if the agreement was made in good faith, if it contained the minimum entitlements as prescribed by the law, and whether the agreement had been properly negotiated and disclosed. Additionally, the commission needed to determine if the agreement was fair and reasonable, taking into account the interests of both the employer and the employees.

The commission assessed the application, considering the procedural fairness of the agreement's negotiation and the substantive fairness of its terms. It found that the agreement had been made in good faith, met all procedural requirements, and contained the minimum entitlements stipulated by law. Furthermore, the commission concluded that the agreement was fair and reasonable, balancing the interests of both parties. Therefore, the application for approval was granted, and the Bromar Electrical Services (Aust) Pty Ltd Enterprise Agreement 2014 - 2018 was approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established