Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2021] FWCA 6284

[2021] FWCA 6284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/7538)

ETU STAFF ENTERPRISE AGREEMENT 2021-2023

Clerical industry
COMMISSIONER LEE	MELBOURNE, 14 OCTOBER 2021

Application for approval of the ETU Staff Enterprise Agreement 2021-2023

[1] An application has been made for approval of an enterprise agreement known as the ETU Staff Enterprise Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the agreement. The Applicant provided the Commission with a copy of the Wage Table referred to in the undertakings. The Wage Table remains on the Commission’s records as a reference to the rates applicable under 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] I note that the Form F17 states that the notification time for the Agreement was on 12 February 2021. The Form F17 also states that the notice of employee representational rights (NERR) was emailed to the employees on 2 March 2021. As such, the employer did not give employees the NERR by a date not later than 14 days after the notification time for the Agreement in accordance with s.173(3) of the Act. The employer provided submissions indicating that the “The notice was delayed as Melbourne entered a lockdown on the 12^th of February delaying the process.”

[5] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] 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) I note that the Agreement covers the organisation.

[8] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 5.4 – Annual Leave.

•  Clause 18.1 – Public Holidays.

•  Clause 21.2.2 – Redundancy.

However, noting clause 4.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2021. The nominal expiry date of the Agreement is 31 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE513523  PR734915>

Annexure A