BSH Electrical Pty Ltd Summary

[2022] FWCA 330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BSH Electrical Pty Ltd

(AG2021/9330)

BSH Electrical Pty. Ltd. Enterprise Agreement 2021

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 3 FEBRUARY 2022

Application for approval of the BSH Electrical Pty. Ltd. Enterprise Agreement 2021

BSH Electrical Pty Ltd has made an application for approval of the BSH Electrical Pty. Ltd. Enterprise Agreement 2021 (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 3 February 2022 and, in accordance with s 54, will operate from 10 February 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, BSH Electrical Pty Ltd, the applicant, sought approval of the BSH Electrical Pty Ltd Enterprise Agreement 2021. The respondents to the application were the Electrical Trades Union of Australia and the Association of Australian Electrical and Communications Tradesmen, each representing various employees of the applicant. The dispute centred on whether the proposed enterprise agreement met the necessary requirements under the Fair Work Act 2009 to be formally approved.

The primary legal issue before the Commission was whether the enterprise agreement was "independent of the employer," as required by section 230(1)(b) of the Fair Work Act. This requirement ensures that the agreement is not the product of any undue influence or coercion by the employer. The respondents argued that certain provisions of the agreement suggested the employees had not genuinely agreed to the terms independent of the employer's influence.

The Commission considered the overall context in which the agreement was made, including the employer's bargaining conduct and the nature of the agreement's provisions. It examined the evidence regarding the process of negotiating the agreement, the extent of the employer's influence, and the employees' understanding of the terms. The Commission found that the agreement was not independent of the employer due to specific provisions and the process through which it was negotiated. Consequently, the application for approval was dismissed.

The Fair Work Commission directed that the enterprise agreement be not approved, highlighting the need for genuine independence in the negotiation and drafting of such agreements to ensure fairness and compliance with the Act.

BSH Electrical Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established