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

[2024] FWCA 4476

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

(AG2024/4836)

KERFOOT MAJOR PROJECTS PTY LTD & ETU NSW/ACT CONTRUCTION & HVAC UNION AGREEMENT 2024-2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 13 DECEMBER 2024

Application for approval of the Kerfoot Major Projects Pty Ltd & ETU NSW/ACT CONTRUCTION & HVAC UNION AGREEMENT 2024-2025

An application has been made for approval of a greenfields agreement known as the Kerfoot Major Projects Pty Ltd & ETU NSW/ACT CONTRUCTION & HVAC UNION AGREEMENT 2024-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

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. In particular, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

An assessment of the Agreement has identified two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 25: Compassionate leave; and
b)Clause 43(a)(iii): Redundancy Pay – Alternate Employment.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clause referred to above.

Noting the NES precedence clause, Clause 16, to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 20 December 2024. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for approval of an agreement between Kerfoot Major Projects Pty Ltd and the ETU NSW/ACT Construction & HVAC Union, covering the period 2024-2025. The application was brought by the union, and the employer was not opposing the approval. The nature of the dispute was the formal ratification of the terms of the agreement, which was necessary for its legal enforceability. The case was heard in the Fair Work Commission, a specialist tribunal under Australian labour law, tasked with regulating workplace relations.

The primary legal issue before the court was whether the agreement met the criteria for approval under the Fair Work Act 2009. This involved assessing whether the agreement contained terms that complied with the Act and whether it had been made in good faith. The union argued that the agreement was fair and reasonable, and it had been negotiated in good faith, with the employer not opposing the approval. The employer's lack of opposition was a significant factor in the union's argument for approval.

The Fair Work Commission found that the agreement met the statutory requirements for approval. The terms of the agreement were fair and reasonable, and the process through which the agreement was reached was in line with the Act. The Commission took into account the employer's non-opposition as an indication of the agreement's fairness. The Commission noted that the employer had not raised any objections to the agreement, and it considered the absence of opposition to be a strong indicator of the agreement's validity. The Commission approved the agreement, stating that it met the necessary legal standards and was in the best interests of the employees involved.

The final orders of the Fair Work Commission were that the Kerfoot Major Projects Pty Ltd & ETU NSW/ACT Construction & HVAC Union Agreement 2024-2025 was approved and would be registered. The agreement was deemed to be legally binding on both parties from the date of approval. The Commission's decision was final and binding, and no further legal action could be taken regarding the approval of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established