DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2018/4788)

VANLITE PTY LTD. T/A AXCELL ELECTRICAL ENGINEERS & CONTRACTORS AND ETU ENTERPRISE AGREEMENT 2018-2021

Electrical contracting industry
COMMISSIONER GREGORY	MELBOURNE, 17 OCTOBER 2018

Application for approval of the Vanlite Pty Ltd. T/A Axcell Electrical Engineers & Contractors and ETU Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Vanlite Pty Ltd. T/A Axcell Electrical Engineers & Contractors 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] 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 wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 October 2018. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the union brought an application before the Fair Work Commission seeking approval of the Vanlite Pty Ltd. T/A Axcell Electrical Engineers & Contractors and ETU Enterprise Agreement 2018-2021. The union contended that the agreement met the criteria for registration under the Fair Work Act 2009. The employer, however, opposed the application, arguing that the agreement contained provisions that did not comply with the Act, including terms on wages and conditions that were considered to be less favourable than those provided for in the relevant award.

The legal issues before the Commission involved whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to determine whether the agreement was a "better off overall test" (BOOT) agreement, meaning that the overall terms and conditions of employment provided for in the agreement were no less favourable than those provided for in the relevant award or modern award. The Commission also had to consider whether the agreement contained any "inconsistency provisions" that were not permissible under the Act.

The Fair Work Commission found that the agreement met the BOOT requirement, as the overall terms and conditions of employment were not less favourable than those provided for in the relevant award. However, the Commission found that the agreement contained an inconsistency provision that was not permissible under the Act. The provision in question allowed for the payment of wages at a rate below the relevant award rate for employees who had been employed for less than six months. The Commission held that this provision was not consistent with the provisions of the Act, which require that all employees be paid at least the award rate of pay. The Commission refused to approve the agreement on this basis.

The Fair Work Commission refused to approve the Vanlite Pty Ltd. T/A Axcell Electrical Engineers & Contractors and ETU Enterprise Agreement 2018-2021, as it contained an inconsistency provision that was not permissible under the Fair Work Act. The Commission found that the agreement met the better off overall test requirement, but the presence of the inconsistency provision meant that the agreement could not be approved in its current form. The Commission ordered that the union and the employer must negotiate in good faith to address the inconsistency and seek to reach an agreement that complied with the Act.

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