Chub Fire & Security Pty Ltd

[2022] FWCA 823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chub Fire & Security Pty Ltd

(AG2022/485)

Chubb Fire and ETU Victoria Electrical Enterprise Agreement, 2021 – 2025

Fire fighting services
COMMISSIONER CIRKOVIC	MELBOURNE, 8 MARCH 2022

Application for approval of the Chubb Fire and ETU Victoria Electrical EnterpriseAgreement 2021 - 2025

Chub Fire & Security Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Chubb Fire and ETU Victoria Electrical Enterprise Agreement, 2021 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 1 March 2022.

On 2 March 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

Chambers sought clarification regarding agreement pre-approval requirements, specifically the provision and form of the NERR and typographical errors contained in the Form 17 declaration.
The parties were notified that clause 32.9 regarding abandonment may be an unenforceable deduction that is contrary to s.324 of the Act.

The dispute resolution term at clause 36.2 did not explicitly allow for the settlement of disputes in relation to the NES as required by the Act.

Clauses 21(p) and Part B clause 23.1(b)(ii) regarding annual leave, clauses 21.1.3 and 21.2.1 regarding termination, clause 24 regarding compassionate leave, clause 31.3.3 regarding family/domestic violence leave, clauses 32.6 and Part B clause 20.1(e) regarding notice, clause 32.10 regarding dismissal without notice, clauses 34.1 and Part B, clause 19.2 regarding redundancy pay, and clause 23.1(e) regarding payment of entitlements on termination may be inconsistent with the National Employment Standards (NES) however the agreement contains an effective NES precedence term at clause 5 which is deemed to resolve the above NES inconsistencies identified in the agreement.

Chambers raised better off overall concerns about apprentice/trainee rates of pay and the minimum engagement of casual workers.

The Applicant has submitted an undertaking in the required form dated 8 March 2022. The undertaking deals with the following topics:

The dispute resolution procedures at clauses 36.2 and 36.3 shall apply to matters arising under the Agreement and under the NES.

The Applicant provided apprentice/trainee rates that are better off than the Award.

Casuals other than on Construction will be engaged or paid for a minimum of four hours per engagement.
The Applicant provided casual loading rates that are better off than the Award.

A copy of the undertaking has been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by Chubb Fire & Security Pty Ltd seeking approval of the Chubb Fire and Electrical Enterprise Agreement 2021-2025. The Electrical Trades Union of Victoria opposed the application, contending that the agreement did not meet the statutory requirements for approval. The Fair Work Commission was tasked with determining whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement was a "certified agreement" as defined under section 172 of the Fair Work Act. This required consideration of whether the agreement had been properly negotiated and contained the necessary terms and conditions. Furthermore, the Commission had to assess whether the agreement provided for the appropriate bargaining processes and whether it was consistent with the overarching principles of the Act, including those relating to procedural fairness and the protection of employees' rights.

In delivering its decision, the Fair Work Commission carefully examined the negotiation process and the contents of the proposed agreement. It found that the agreement had been negotiated in good faith and that all mandatory terms and conditions were included. The Commission was satisfied that the agreement provided for adequate bargaining processes and that it complied with the statutory requirements. Consequently, the Commission approved the agreement, finding it to be a certified agreement under the Act.

As a result of the Commission's decision, Chubb Fire & Security Pty Ltd was granted approval for the Chubb Fire and Electrical Enterprise Agreement 2021-2025. The agreement is now legally binding on the parties and will govern the employment conditions for the duration of its term.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established