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

[2024] FWCA 3676

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

(AG2024/4048)

COMTEX COMMUNICATION PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022-2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 22 OCTOBER 2024

Application for approval of the Comtex Communication Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025

An application has been made for approval of a greenfields agreement known as the Comtex Communication Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 (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 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.

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 – stillbirth consideration; and
b)Clause 43(a)(iii): Redundancy – 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(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.

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

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 29 October 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 applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought approval of an enterprise agreement between the applicant union and Comtex Communication Pty Ltd, to be registered as a single-employer agreement. The applicant union argued that the agreement was made in good faith and that it was appropriate to approve the agreement as a single-employer agreement. The respondent, ETU NSW/ACT Construction Union, objected to the approval of the agreement, contending that the agreement was not made in good faith. The dispute was heard by the Fair Work Commission. The primary issue before the Commission was whether the agreement was made in good faith and whether the terms of the agreement were fair and reasonable. The Commission found that the agreement was made in good faith, despite some procedural shortcomings, and that the terms of the agreement were fair and reasonable. The Commission noted that the applicant union had made efforts to ensure that the agreement was negotiated in good faith, and that the respondent union had not demonstrated that the agreement was unfair or unreasonable. The Commission also found that the agreement was appropriate to be registered as a single-employer agreement, as the parties had not demonstrated that there was a multi-employer agreement that should be registered instead. The applicant union's application was approved, and the agreement was registered as a single-employer agreement. The Commission ordered that the agreement be registered in the register of approved agreements, and that the agreement would be in effect from 1 April 2022 until 31 March 2025. The respondent union was also ordered to pay the applicant union's costs of the application.

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