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

[2024] FWCA 4267

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

(AG2024/4639)

MKII ELECTRICAL PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 3 DECEMBER 2024

Application for approval of the MKII Electrical Pty Ltd & ETU Enterprise Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the MKII Electrical Pty Ltd & ETU Enterprise Agreement 2021-2025 (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.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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)Part A Clause 35.4(a)(ii): Public holidays – substitution to another day; and
b)Part A Clause 20.1(a) and Part B Clause 20.1(a): Notice of termination – exclusion of apprentices.

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 4.1(b)), 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2024. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the union and MKII Electrical Pty Ltd. The union sought approval of the enterprise agreement negotiated for the period 2021 to 2025. The agreement was to govern employment terms and conditions for the company's employees. The nature of the dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly in terms of the procedural fairness and the protection of employee rights. The Fair Work Commission was the court tasked with making a determination on the application.

The primary legal issues that the Commission had to decide were whether the agreement had been made in accordance with the statutory requirements of the Fair Work Act, and if it provided for the fair and equitable treatment of employees. The Commission needed to ensure that the agreement met the criteria for procedural fairness, that it had been made without coercion, and that it contained minimum terms and conditions that complied with the safety net provided by the Act. Additionally, the Commission had to consider whether the agreement appropriately balanced the rights and interests of both the employer and the employees.

The Fair Work Commission found that the agreement had been made in good faith, without any coercion, and that it contained all the required minimum terms and conditions as set out in the Fair Work Act. The Commission was satisfied that the union had adequately represented the employees during the negotiation process and that the agreement provided for their fair and equitable treatment. The Commission noted that the agreement included provisions that went beyond the statutory minimums, thereby providing a safety net that was more favourable to the employees. As a result, the Commission approved the agreement, finding that it met all the necessary legal requirements.

The final order of the Commission was to approve the MKII Electrical Pty Ltd & ETU Enterprise Agreement 2021-2025, effective from the date of the decision. The agreement was to remain in force until such time as it was terminated, varied, or replaced in accordance with the Fair Work Act. The Commission's approval ensured that the agreement would provide a stable and fair framework for the employment relationship between the union and the company for the duration of its term.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established