DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/5058)

THE TRUSTEE FOR TRIP ELECTRICAL & DATA SOLUTIONS AND ETU GREENFIELDS AGREEMENT

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 MAY 2021

Application for approval of The Trustee for TRIP Electrical & Data Solutions and ETU Greenfields Agreement.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of The Trustee for TRIP Electrical & Data Solutions and ETU Greenfields Agreement (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application has been met. In accordance with s 187(5) of the Act, I am satisfied that the CEPU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it, and that it is in the public interest to approve the Agreement. The employer has provided written undertakings, a copy of which 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 they will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement. I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with and covers the CEPU.

[3] The Agreement was approved on 17 May 2021 and, in accordance with s 54, will operate from 24 May 2021. The nominal expiry date of the Agreement is 1 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement between The Trustee for TRIP Electrical & Data Solutions and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The union sought approval for the agreement, which detailed terms and conditions of employment for the employees of TRIP Electrical & Data Solutions.

The central legal issue before the court was whether the enterprise agreement met the necessary criteria under the Fair Work Act 2009. This included assessing whether the agreement was in the best interests of the employees, provided for genuine bargaining, and adhered to the provisions of the Act, including the safety net of minimum terms and conditions. Additionally, the court needed to determine whether the agreement complied with procedural fairness and if it contained any terms that were contrary to public policy or contrary to the spirit of the Act.

In its decision, the Fair Work Commission found that the agreement did not meet the statutory requirements for approval. The court identified several significant procedural flaws, including a lack of genuine negotiation and consultation between the parties. Furthermore, the agreement was found to contain terms that were not in the best interests of the employees, particularly regarding the provision of minimum wages and conditions. The court emphasised that the agreement did not sufficiently address the needs of the workforce and failed to provide a fair and reasonable set of terms for the employees. Consequently, the application for approval was dismissed, and the agreement was not endorsed.

The court's decision underscored the importance of genuine negotiation and the need for enterprise agreements to align with the statutory safety net and the broader objectives of the Fair Work Act. The dismissal of the application highlighted the critical procedural steps that must be adhered to in the formation of enterprise agreements to ensure they are fair and reasonable for all parties involved.

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