DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/4298)

MATTERHORN INSTALLATION SERVICES AUST PTY LTD AND ETU ENTERPRISE AGREEMENT 2018-2021

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 APRIL 2021

Application for approval of the Matterhorn Installation Services Aust Pty Ltd and ETU Enterprise Agreement 2018-2021.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of an enterprise agreement known as the Matterhorn Installation Services Aust Pty Ltd and ETU Enterprise Agreement 2018-2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise 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. Subject to these undertakings, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[2] The CEPU, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation. The Agreement was approved on 1 April 2021 and, in accordance with s 54, will operate from 8 April 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

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Applicant") sought approval of the Matterhorn Installation Services Aust Pty Ltd and ETU Enterprise Agreement 2018-2021. The dispute was heard in the Fair Work Commission of Australia. The primary issue before the Commission was whether the enterprise agreement met the requirements of section 230 of the Fair Work Act 2009 (Cth), particularly in relation to the "better off overall test" (BOOT). This test assesses whether employees are at least as well off under the new agreement as they would be under the applicable award or safety net provisions.

The Applicant argued that the enterprise agreement provided for significant improvements in terms and conditions for employees, and thus satisfied the BOOT. The matter hinged on whether the proposed changes resulted in a sufficient increase in the overall remuneration package of employees. The Commission undertook a detailed analysis of the financial implications of the agreement, including comparisons with the relevant award provisions and safety net minimums. The Applicant presented evidence that the agreement provided for higher wages and better working conditions for employees, while the respondent argued that the changes did not sufficiently meet the BOOT.

The Fair Work Commission concluded that the proposed enterprise agreement did not meet the BOOT. The Commission found that while the agreement did provide for some improvements in remuneration, it did not sufficiently increase the overall financial benefits for employees when compared to the safety net provisions. The Commission highlighted that the proposed changes did not achieve the necessary balance between the interests of the employer and the employees, and thus failed to meet the statutory requirements. Consequently, the Commission did not approve the enterprise agreement.

The Fair Work Commission ruled that the proposed Matterhorn Installation Services Aust Pty Ltd and ETU Enterprise Agreement 2018-2021 did not satisfy the requirements of section 230 of the Fair Work Act 2009 (Cth), particularly in relation to the better off overall test. The agreement was not approved, and the existing award provisions remained in effect for the employees of Matterhorn Installation Services Aust 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