DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Colbros Electrical Contracting Pty Ltd
(AG2018/6080)

COLBROS ELECTRICAL CONTRACTING PTY LTD SINGLE ENTERPRISE AGREEMENT 2018

Electrical contracting industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 8 JULY 2019

Application for approval of the Colbros Electrical Contracting Pty Ltd Single Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement to be known as the Colbros Electrical Contracting Pty Ltd Single Enterprise Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Employer, Colbros Electrical Contracting Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of these undertakings are 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 of the Act, as are relevant to this application for approval, have been met.

[4] Pursuant to s.590 of the Act, on 8 May 2019, I granted a request by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to make written submissions objecting to the approval of the Agreement. The CEPU only sought to make written submissions (i.e. not otherwise be involved in the approval process more generally). The CEPU was not involved in the bargaining process, nor did it assert that it was a bargaining representative in respect of the Agreement. The Agreement, at the time it was made, covers 21 employees of the Applicant. Nineteen of those employees voted on the Agreement, and 18 employees voted to approve the Agreement. Fifteen of those employees appointed themselves or other employees as bargaining representatives.

[5] By way of written submissions dated 10 April 2018, the CEPU objected to the approval of the Agreement on the basis (in summary) that:

• the Agreement was not genuinely agreed to (c.f. s.180(5) and s.188 of the Act);

• the Agreement was contrary to s.55 of the Act; and/or

• the terms and conditions under the Agreement did not pass the BOOT (by reference to the terms and conditions of the Electrical, Electronic and Communications Contracting Award 2010 (the Award)).

[6] In relation to alleged non-compliance with s.180(5), and inter alia s.188, of the Act, the CEPU relied upon the decision of the Full Court of the Federal Court of Australia in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 356 ALR 535; [2018] FCAFC 77 (at [63], [112]-[113] and [115]), and the decision of the Full Bench of the Fair Work Commission in Australian Workers’ Union v Professional Traffic Solutions[2018] FWCFB 6333 (at [42]). Having regard to the submissions of the Applicant, and the Form F16 and F17, the Witness Statement of Mr Peter Cole, General Manager of the Applicant, and the case law principles identified by the CEPU, I am satisfied that the CEPU submissions as to non-compliance with s.180(5) (and s.188) of the Act ought be rejected. More specifically, I am satisfied that the Applicant:

• undertook all reasonable steps, including during the access period, to explain the terms of the Agreement and the effect of those terms to employees, in a manner appropriate (taking into account the circumstances and needs of relevant employees); and

• explained relevant and material less beneficial terms (between the Agreement and the Award) to employees; and

• did not mislead employees (by way of act or omission) in respect of differences between the Agreement and the Award.

[7] I note that in reaching my determination (and relevant satisfaction as to compliance with s.180(5) and s.188 of the Act), I have had regard to the fact that the Agreement replaces the Colbros Electrical (Aus) Pty Ltd Collective Agreement 2007-2012 [AC 306719] (Earlier Agreement). 1 Many of the terms in the Earlier Agreement are simply updated by the Agreement. This militates against the CEPU assertions as to the explanation of the terms of the Agreement to employees, including the nature of that explanation, in that the “circumstances” of such steps are to be considered having regard to the relevant circumstances applying at the workplace.2

[8] In relation to the CEPU allegations that the terms and conditions under the Agreement do not pass the BOOT, I reject those allegations. All such allegations (or issues/concerns) have been resolved by way of the undertakings set out in Annexure A to this decision and/or via the clarification provided in the Applicant’s submissions. More specifically, having regard to the submissions of the Applicant, the Witness Statement of Mr Cole, the Form F17, and the decision of the Full Bench of the Commission in SDA v Beechworth Bakery Employee Co Pty Ltd t/as Beechworth Bakery[2017] FWCFB 1664 (at [12]) (as to the method of the application of the BOOT), I am comfortably satisfied that the Agreement passes the BOOT, and that employees will be better off overall under the Agreement when compared to the Award. I note that taking into account the undertakings, the rates of pay under the Agreement are up to over 40 percent above Award rates of pay (excluding discretionary allowances payable above or on top of such rates of pay).

[9] I am equally satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES, and that the Agreement contains no unlawful terms. Importantly, s.65(1A) of the Act will apply to any requests for flexible working arrangements, and the NES and the terms of the Agreement will override any company policies inconsistent with same under clause 10.1 of the Agreement. Further, to the extent that the Agreement provides for deductions from wages, such deductions must still be made in accordance with s.324 of the Act (see clause 3.4 of the Agreement).

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 July 2019. The nominal expiry date of the Agreement is 15 July 2023.

DEPUTY PRESIDENT

1 See BGC Contracting Pty Ltd [2018] FWC 1466 (at [87]).

Printed by authority of the Commonwealth Government Printer

Colbros Electrical Contracting Pty Ltd

[2019] FWCA 4747

8 JULY 2019

DECISION