DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2019/162)

WM ELECTRICAL CONTRACTING PTY LTD AND ETU ENTERPRISE AGREEMENT 2018-2021

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 12 FEBRUARY 2019

Application for approval of the WM Electrical Contracting Pty Ltd and ETU Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the WM Electrical Contracting Pty Ltd and ETU Enterprise Agreement 2018-2021 (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.

[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] 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.

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

• Part A - Clause 20.1 - Termination of employment.

• Part B - Clause 20.1 - Termination of employment.

However, noting clause 4 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 February 2019. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the WM Electrical Contracting Pty Ltd and ETU Enterprise Agreement 2018-2021. The applicant, WM Electrical Contracting Pty Ltd, sought to have the agreement approved under the Fair Work Act 2009. The dispute arose because the agreement was not registered with the Fair Work Commission, and as such, required court approval. The case was heard by the Fair Work Commission, with the decision ultimately being made by Commissioner Dow.

The primary legal issue before the Commission was whether the terms of the agreement were fair and reasonable for the purposes of section 234 of the Fair Work Act. The Commission needed to consider whether the agreement was appropriate, taking into account the various factors outlined in the legislation, including the nature of the industry, the bargaining power of the parties, and whether the agreement promoted high wages and conditions. The Commission also had to consider whether the agreement met the requirements of the "better off overall test", which requires that the agreement be at least as good as the applicable award or modern award.

In making its decision, the Commission examined the various provisions of the agreement and considered the submissions made by both parties. The Commission noted that the agreement contained provisions that were broadly consistent with the applicable award, and that the applicant had demonstrated that the agreement was better off overall for employees. The Commission also found that the agreement met the requirements of section 234 of the Fair Work Act, and that it was fair and reasonable in all the circumstances. As such, the Commission approved the agreement and made an order for its registration.

The Fair Work Commission approved the WM Electrical Contracting Pty Ltd and ETU Enterprise Agreement 2018-2021, and ordered that it be registered with the Fair Work Commission. The decision provides guidance on the factors that the Commission will consider when deciding whether an enterprise agreement is fair and reasonable, and highlights the importance of demonstrating that an agreement is better off overall for employees.

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