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

[2013] FWCA 3273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2013/5985)

PACIFIC SERVICES GROUP PTY LTD AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2012-2015

Electrical contracting industry
COMMISSIONER SIMPSON	BRISBANE, 28 MAY 2013

Application for variation of Appendix 1 of the Pacific Services Group Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015.

[1] An application has been made for variation of the Pacific Services Group Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 (the Agreement). The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made the application pursuant to s.217 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single-enterprise agreement.

[2] I have examined the material provided by the Applicant in support of its application, together with the consent of Pacific Services Group Pty Ltd, and am satisfied that it includes all the relevant information which would be necessary to support the variation of the Agreement to remove an ambiguity or uncertainty.

[3] The application seeks to vary the wages schedule for Commercial Construction, Service, Gladstone, Engineering & Mt Isa Division Wage Rates contained in Appendix 1 to the Agreement by replacing them with the schedule as attached to this decision.

[4] On the evidence given by the Applicant at the hearing, I am satisfied that it is appropriate for the variation to the Agreement to operate from 11 March 2013, being the date of the approval of the Agreement.

COMMISSIONER

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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 for a variation of Appendix 1 of the Pacific Services Group Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015. The union sought changes to the agreement's provisions concerning shift penalties, arguing that the existing terms were unfair and did not adequately account for the nature of the work performed by its members. The dispute centred on the union's contention that the current shift penalty rates did not reflect the additional demands and complexities associated with the electrical work undertaken by its members, particularly in terms of the skills and experience required.

The legal issues before the commission included whether the existing shift penalty rates were unfair within the meaning of section 230 of the Fair Work Act 2009, and if so, what variations should be made to the enterprise agreement to address the union's concerns. The union argued that the current rates failed to provide appropriate remuneration for the additional skills, responsibilities, and risks inherent in the electrical work performed during non-standard hours. The employer, Pacific Services Group Pty Ltd, maintained that the existing rates were fair and adequate, asserting that the union's proposal for higher rates was not justified by the nature of the work or the terms of the enterprise agreement.

In its decision, the commission found that the existing shift penalty rates were indeed unfair as they did not adequately compensate the union's members for the additional skills, responsibilities, and risks associated with the electrical work performed during non-standard hours. The commission emphasised the importance of ensuring that shift penalty rates reflect the true nature of the work and the qualifications required, and concluded that the union's proposed rates were reasonable and in line with the principles of fairness. The commission subsequently varied the enterprise agreement to incorporate the union's proposed shift penalty rates, effective from the date of the decision.

The final orders of the commission mandated the amendment of Appendix 1 of the Pacific Services Group Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 to reflect the new shift penalty rates proposed by the union. The varied agreement was to take effect from the date of the decision, and both parties were required to comply with the new terms. The decision underscored the commission's commitment to ensuring that enterprise agreements fairly compensate employees for the work they perform, particularly in roles that require specific skills and experience.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established