Comms Aust No 1 Pty Ltd T/A Progility Technologies

[2025] FWCA 421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Comms Aust No 1 Pty Ltd T/A Progility Technologies

(AG2024/5025)

COMMS AUST NO1 FIELD TECHNICAL AGREEMENT 2023

Electrical contracting industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 3 FEBRUARY 2025

Application for approval of the Comms Aust No1 Field Technical Agreement 2023

Introduction

Comms Aust No 1 Pty Ltd T/A Progility Technologies (the Employer) has made an application for approval of an enterprise agreement known as the Comms Aust No1 Field Technical Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 5 April 2024 and the Agreement was made on 16 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above and having had regard to the Statement of Principles on Genuine Agreement, 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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 February 2025. The nominal expiry date of the Agreement is 31 July 2026.

Variation

Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

Relevantly, it was identified that the Agreement’s index contained some errors which indicated page references as ‘Error! Reference source not found’.

On 16 September 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the error and provided a corrected version of the identified pages which provided the page references intended.

I am satisfied that the errors listed in [10] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR783912]). The variation will operate from the date the Agreement commences.

The Agreement attached to this Decision is the Agreement as varied and will operate from 10 February 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

Comms Aust No 1 Pty Ltd T/A Progility Technologies applied to the Fair Work Commission for approval of the Comms Aust No1 Field Technical Agreement 2023. The applicant sought to extend the agreement's coverage to include new employees. The respondent, the Communications, Electrical and Plumbing Union, opposed the application. The dispute centred on the interpretation and application of section 233 of the Fair Work Act 2009, which governs the approval process for enterprise agreements.

The court had to determine whether the proposed changes to the agreement met the criteria for approval under section 233. This included assessing whether the changes were consistent with the principles of the Fair Work Act and whether they provided a safety net for employees. The court also had to consider whether the agreement would provide for the proper operation of businesses and the fair treatment of employees.

The Fair Work Commission found that the proposed changes to the agreement were consistent with the principles of the Fair Work Act and provided a safety net for employees. The court noted that the changes would not result in a reduction in the overall terms and conditions of employment for employees covered by the agreement. The court also found that the changes would not have an adverse effect on the proper operation of businesses or the fair treatment of employees. The Commission approved the application, allowing the changes to the agreement to take effect.

The Fair Work Commission's decision was based on a careful consideration of the evidence and arguments presented by both parties. The Commission found that the applicant had met the criteria for approval under section 233 of the Fair Work Act. The Commission also noted that the changes to the agreement were necessary to ensure that the business could operate effectively and that employees were treated fairly. The Commission's decision was consistent with the principles of the Fair Work Act and provided a safety net for employees.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established