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

[2013] FWCA 7359

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
(AG2013/9099)

TRUSTEE FOR J & J CARABOTT FAMILY TRUST & THE TRUSTEE FOR THE CARABOTT FAMILY TRUST T/A TECH SMART SYSTEMS AND ETU ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 24 SEPTEMBER 2013

Application for approval of the Trustee for J & J Carabott Family Trust & The Trustee for the Carabott Family Trust T/A Tech Smart Systems and ETU Enterprise Agreement 2010-2014.

[1] An application has been made for approval of an enterprise agreement known as the Trustee for J & J Carabott Family Trust & The Trustee for the Carabott Family Trust T/A Tech Smart Systems and ETU Enterprise Agreement 2010-2014 (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 (CEPU). The Agreement is a single-enterprise agreement.

[2] Subject to a concern that has been addressed by way of an undertaking, 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.

[3] As noted, pursuant to s.190(3), I have accepted an undertaking from the Trustee for J & J Carabott Family Trust & The Trustee for the Carabott Family Trust T/A Tech Smart Systems. In accordance with s.191(1) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to this decision.

[4] The CEPU, 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) of the Act I note that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2013. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

ATTACHMENT A

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 (CEEAIU) and Tech Smart Systems, represented by the J & J Carabott Family Trust and the Carabott Family Trust. The dispute centred on the application for the approval of the Enterprise Bargaining Agreement (EBA) between the CEEAIU and Tech Smart Systems for the period 2010-2014. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the EBA satisfied the requirements for approval, including whether it provided for a direct or indirect ban on the use of labour-only sub-contractors and whether it allowed for a ban on the use of labour-only sub-contractors in certain circumstances. The Commission also had to consider whether the EBA included provisions that were contrary to the public interest or had an unreasonable impact on small businesses.

In its decision, the Commission noted that the EBA included provisions that banned the use of labour-only sub-contractors and provided for a direct ban in certain circumstances. The Commission found that these provisions did not meet the criteria for approval as they were contrary to the public interest and had an unreasonable impact on small businesses. The Commission also found that the EBA did not provide for a direct or indirect ban on the use of labour-only sub-contractors in all circumstances, as required by the Act. The Commission concluded that the EBA did not meet the criteria for approval and dismissed the application.

The Commission made no orders as the application for approval was dismissed. The EBA between the CEEAIU and Tech Smart Systems for the period 2010-2014 was not approved by the Commission and therefore remained inoperative.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established