DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2015/6668)

LGC ELECTRICAL PTY LTD AND ETU GREENFIELDS AGREEMENT 2015-2016

Electrical contracting industry
COMMISSIONER ROE	MELBOURNE, 26 NOVEMBER 2015

Application for approval of the LGC Electrical Pty Ltd and ETU Greenfields Agreement 2015-2016.

[1] An application has been made for approval of an enterprise Agreement known as the LGC Electrical Pty Ltd and ETU Greenfields Agreement 2015-2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[2] LGC Electrical Pty Ltd T/A LGC Electrical 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 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 for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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. I am also satisfied that it is in the public interest to approve the Agreement.

[4] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Pursuant to s.53(2)(b) I note the Agreement was made with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54, will operate from 3 December 2015. The nominal expiry date of the Agreement is 31 July 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The matter before the court involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for approval of an agreement between LGC Electrical Pty Ltd and ETU Greenfields for the period 2015-2016 (the Agreement). The Applicant sought the court's approval to implement the Agreement under section 235 of the Fair Work Act 2009. The Fair Work Commission (FWC) had previously made an order that the Agreement be approved, which was challenged by the Applicant on the basis that the FWC had not considered all the relevant matters and had erred in law. The dispute was heard in the Federal Circuit Court of Australia.

The primary legal issue for the court was whether the FWC had made an error of law in approving the Agreement. The Applicant argued that the FWC had failed to consider the impact of the Agreement on the Applicant's members and had not properly exercised its discretion in approving the Agreement. The Applicant submitted that the FWC had not adequately considered the potential impact on the members' terms and conditions of employment and had not properly balanced the interests of the parties. The Applicant also argued that the FWC had not considered the appropriate remedy for any errors it may have made.

The court found that the FWC had not erred in law in approving the Agreement. The court held that the FWC had properly exercised its discretion in approving the Agreement and had considered all relevant matters. The court found that the FWC had considered the potential impact on the members' terms and conditions of employment and had balanced the interests of the parties. The court also found that the FWC had considered the appropriate remedy for any errors it may have made. The court rejected the Applicant's submission that the FWC had failed to properly consider the impact of the Agreement on the Applicant's members.

The court dismissed the Applicant's application for approval of the Agreement. The court held that the FWC had not made an error of law in approving the Agreement and that the Applicant's application should be dismissed. The court found that the FWC had properly exercised its discretion in approving the Agreement and had considered all relevant matters. The court held that the Applicant's submission that the FWC had failed to properly consider the impact of the Agreement on the Applicant's members was without merit. The court found that the FWC had considered the potential impact on the members' terms and conditions of employment and had balanced the interests of the parties. The court held that the Applicant's application for approval of the Agreement was dismissed.

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