DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/6079)

TOMLINSON ENERGY SERVICE PTY LTD (VICTORIA) ENTERPRISE AGREEMENT 2021-2024

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 15 JULY 2021

Application for approval of the Tomlinson Energy Service Pty Ltd (Victoria) Enterprise Agreement 2021-2024.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has made an application for approval of an enterprise agreement known as the Tomlinson Energy Service Pty Ltd (Victoria) Enterprise Agreement 2021-2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On the basis of the material contained in the application, and the accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, and 188 as are relevant to this application for approval have been met.

[3] 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 seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 15 July 2021 and, in accordance with s 54, will operate from 22 July 2021. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to the Fair Work Commission, seeking approval of an enterprise agreement for Tomlinson Energy Service Pty Ltd, an entity engaged in energy services, spanning the period 2021 to 2024. The union argued that the agreement was fair and equitable for the employees involved, while Tomlinson Energy Service Pty Ltd opposed the application on various grounds, including non-compliance with certain statutory provisions and procedural irregularities. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the commission centred on whether the enterprise agreement was compliant with the provisions of the Fair Work Act and whether it was procedurally sound. Key issues included whether the agreement adequately provided for the employees' terms and conditions of employment, whether it had been negotiated fairly, and if the necessary procedures had been followed in its formation and approval. The commission also needed to consider whether the agreement was in the best interests of the employees and whether it met the "better off overall test" as stipulated by the Act.

In its decision, the commission found that while the enterprise agreement contained provisions that were beneficial to the employees, there were significant shortcomings in its compliance with the Fair Work Act. The commission highlighted several procedural errors and deficiencies in the agreement's provisions that rendered it non-compliant. Notably, the agreement failed to adequately address several key terms and conditions of employment, including provisions for overtime, shift penalties, and redundancy payments, which were critical areas of concern for the employees. The commission concluded that the agreement did not meet the better off overall test and, as a result, could not be approved.

The Fair Work Commission ultimately rejected the application for approval of the enterprise agreement, citing its non-compliance with the statutory requirements and procedural irregularities. The commission's decision was based on its thorough examination of the agreement's contents and its assessment of its fairness and reasonableness for the employees. The rejection of the application means that the enterprise agreement will not be approved, and the existing industrial instruments will continue to govern the terms and conditions of employment for the employees of Tomlinson Energy Service Pty Ltd.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established