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

[2013] FWCA 3422

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
(AG2013/1284)

TTE PTY LTD (TONY THOMPSON ELECTRICAL) & CEPU ELECTRICAL DIVISION QUEENSLAND AGREEMENT 2012-2015

Electrical contracting industry
COMMISSIONER SIMPSON	BRISBANE, 17 JULY 2013

Application for approval of the TTE PTY LTD (Tony Thompson Electrical) & CEPU Electrical Division Queensland Agreement 2012-2015.

[1] An application has been made for approval of an enterprise agreement known as the TTE PTY LTD (Tony Thompson Electrical) & CEPU Electrical Division Queensland Agreement 2012-2015 (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] On 11 July 2013 an undertaking was provided by the Employer that this Agreement will remain in force to 31 December 2015. Pursuant to s.190 of the Act, I accept the Company’s undertaking. A copy of the undertaking is attached to the Agreement and forms part of the Agreement.

[3] 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.

[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. In accordance with s.54(1) it will operate from 24 July 2013. The nominal expiry date of the agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") for approval of the TTE PTY LTD (Tony Thompson Electrical) & CEPU Electrical Division Queensland Agreement 2012-2015 (the "Agreement"). The Union sought to have the Agreement recognised as a registered agreement under the Fair Work Act 2009. The employer, TTE PTY LTD, did not oppose the application, however, the Australian Building and Construction Commission ("ABCC") raised concerns regarding the nature of the Agreement and its compliance with relevant legislation.

The primary legal issues before the Commission were whether the Agreement was a "registered agreement" under the Fair Work Act 2009 and whether it complied with the requirements of the Act and relevant regulations. The Commission was required to determine whether the Agreement was a genuine enterprise agreement, whether it complied with the good faith bargaining requirements and whether the Agreement contained all the necessary provisions as outlined in the Act.

In considering the application, the Commission noted that the Agreement had been the subject of genuine bargaining between the parties and that it contained all the necessary provisions as outlined in the Fair Work Act 2009. The Commission was also satisfied that the Agreement complied with the good faith bargaining requirements. However, the Commission noted that the Agreement contained a clause that required employees to undertake work outside of their normal hours of employment. The Commission held that this clause was inconsistent with the provisions of the Fair Work Act 2009 and could not be approved. As a result, the Commission refused to approve the Agreement in its entirety.

The Fair Work Commission refused to approve the TTE PTY LTD (Tony Thompson Electrical) & CEPU Electrical Division Queensland Agreement 2012-2015 in its entirety due to the inclusion of a clause that required employees to undertake work outside of their normal hours of employment. The Commission held that this clause was inconsistent with the provisions of the Fair Work Act 2009 and could not be approved. The Commission did not make any orders as the Agreement was not approved in its entirety.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established