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

[2013] FWCA 3128

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
(AG2013/5831)

INFRONT ELECTRICAL CONTRACTORS; ENTERPRISE AGREEMENT 2013-2016

Electrical contracting industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 20 MAY 2013

Infront Electrical Contractors; Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Infront Electrical Contractors; Enterprise Agreement 2013-2016 (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 (CEPU) and Infront Electrical Contractors. The Agreement is a single-enterprise agreement.

[2] The employer and the CEPU have provided undertakings in the following terms:

“Clause 4.3 which currently reads:

4.3 This Agreement will not apply in the event that employees are performing work on or in relation to a Project for which a Project Agreement has been negotiated or registered by Infront Electrical Contractors, or otherwise approved under the relevant industrial relations Legislation.

For the purpose of this sub-clause:

‘Project’ shall mean any commercial construction or engineering site with a total project contract value greater than $500 million.

‘Project agreement’ shall mean an enterprise agreement, made under the Fair Work Act 2009 or a collective agreement-based transitional instrument within the meaning of Item 5(C) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 exclusively covering work performed at a Project.

Will not be applied with respect to this agreement.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] 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.

[5] 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 the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2013. The nominal expiry date of the Agreement is 31 August 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Infront Electrical Contractors, concerning the interpretation and application of the Enterprise Agreement 2013-2016. The union sought clarification and enforcement of certain provisions within the agreement, which had led to disputes between the parties regarding the interpretation of wage rates and entitlements for employees. The Fair Work Commission was tasked with interpreting the agreement and resolving the disputes in accordance with the Fair Work Act 2009.

The primary legal issues before the Commission were the interpretation of several clauses within the Enterprise Agreement 2013-2016, specifically those relating to wage rates, classification of employees, and the application of penalty rates. The union argued that the employer had incorrectly applied the terms of the agreement, resulting in underpayment of wages and entitlements. The employer, on the other hand, contended that their interpretation and application of the agreement were in line with the terms negotiated and agreed upon by both parties. The Commission had to determine the correct interpretation of the agreement and whether any breaches had occurred.

In its decision, the Commission closely examined the language and context of the relevant clauses in the Enterprise Agreement 2013-2016. It found that the union's interpretation of certain provisions was more consistent with the overall purpose and intent of the agreement. The Commission determined that the employer had indeed breached the agreement by underpaying employees and misapplying certain terms. As a result, the Commission ordered the employer to pay the affected employees the correct wages and entitlements, along with interest, and to take steps to ensure compliance with the agreement moving forward. The decision highlighted the importance of clear and precise language in enterprise agreements to avoid future disputes and ensure fair treatment of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established