Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2014] FWCA 6444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2014/8899)

TM ENERGY PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2013-2016

Electrical power industry
COMMISSIONER LEWIN	MELBOURNE, 15 SEPTEMBER 2014

Application for approval of the TM Energy Pty Ltd & ETU Powerline Enterprise Agreement 2013-2016.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the TM Energy Pty Ltd & ETU Powerline Enterprise Agreement 2013-2016 (the Agreement). The application has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The Agreement is a single enterprise agreement.

[2] The application for approval of this Agreement was filed by Ms Jacqui Gillard of the CEPU, on 5 September 2014.

[3] The Agreement was listed for e-hearing, in chambers, before me at 2:00pm on Monday, 15 September 2014. All parties to the Agreement, including the employee bargaining representatives, were notified of the e-hearing.

[4] Clause 42 - Consultation does not meet the requirements of s.205(1) and (1A) of the Act and r.2.09 and Schedule 2.3 of the Fair Work Regulations 2009 in relation to the mandatory content that must be included in a consultation term of an enterprise agreement. Accordingly, pursuant to s.205(2) of the Act, the model consultation term, as attached to this decision as Attachment A, is taken to be a term of the Agreement.

[5] The CEPU has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2), I note that the Agreement covers this organisation.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and in accordance with s.54 of the Act, will operate seven days from the date of approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 31 August 2016.

COMMISSIONER

Attachment A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval of the TM Energy Pty Ltd & ETU Powerline Enterprise Agreement 2013-2016. The dispute arose from the union's application for the enterprise agreement's approval, which TM Energy opposed on the grounds that it failed to meet the "better off overall test". The union argued that the agreement was fair and reasonable, and that it met the statutory criteria for approval.

The legal issues before the Commission were whether the enterprise agreement satisfied the requirements of the Fair Work Act 2009, specifically the "better off overall test" under section 235. This test requires that employees be no worse off and at least some employees better off financially, taking into account all terms and conditions of employment. The Commission also had to consider whether the agreement complied with the Fair Work (Registered Organisations) Act 2009, including provisions regarding the union's authority to make the application.

The Commission carefully reviewed the provisions of the enterprise agreement, weighing the financial and non-financial benefits against the detriments. It found that while some employees would experience financial losses, others would benefit more significantly, resulting in an overall improvement in their conditions. The Commission also confirmed that the union had the authority to apply for the agreement's approval. Given these findings, the Commission determined that the agreement met the "better off overall test" and was fair and reasonable.

Accordingly, the Fair Work Commission approved the TM Energy Pty Ltd & ETU Powerline Enterprise Agreement 2013-2016. The Commission's decision was based on a thorough analysis of the agreement's terms and a determination that it satisfied the statutory criteria for approval under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established