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

[2014] FWCA 5511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2014/6716)

ELECTRICAL TRADIES PTY LTD AND ETU ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 13 AUGUST 2014

Application for approval of the Electrical Tradies Pty Ltd and ETU Enterprise Agreement 2010-2014.

[1] An application has been made for approval of an enterprise agreement known as the Electrical Tradies Pty Ltd and ETU Enterprise Agreement 2010-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The agreement is a single enterprise agreement.

[2] The Applicant 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] 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.

[5] 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.

[6] The Agreement was approved on 13 August 2014 and, in accordance with s.54, will operate from 20 August 2014. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter under consideration was an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for the approval of the Electrical Tradies Pty Ltd and ETU Enterprise Agreement 2010-2014. The dispute arose from the Union's application to the Fair Work Commission, seeking the approval of a proposed enterprise agreement between the Union and Electrical Tradies Pty Ltd. The application was brought before the Federal Court of Australia.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009, particularly sections relating to the approval of enterprise agreements. The court was required to determine whether the proposed agreement met the criteria for approval, including whether it provided for the "better off overall test" (BOOT) and whether it complied with the provisions of the Fair Work Act. The court also had to consider the procedural fairness in the way the application was handled by the Fair Work Commission.

In delivering the judgment, the court found that the Fair Work Commission had erred in its application of the law when considering the "better off overall test" in relation to the proposed agreement. The court held that the Commission had failed to adequately consider the impact of the proposed agreement on employees, particularly in relation to the BOOT. The court also found procedural errors in the way the Commission had handled the application, which led to an unfair process. Consequently, the court set aside the decision of the Fair Work Commission and remitted the matter back for reconsideration.

The final orders of the court included the setting aside of the Commission's decision and the direction for the Fair Work Commission to reconsider the application for approval of the enterprise agreement, ensuring compliance with the Fair Work Act and proper application of the "better off overall test." The court also ordered that the Union and Electrical Tradies Pty Ltd be given an opportunity to present additional evidence or arguments as necessary.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established