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

[2024] FWCA 3562

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

(AG2024/3848)

CONVERGINT AUSTRALIA PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Building services
COMMISSIONER JOHNS	MELBOURNE, 10 OCTOBER 2024

Application for approval of the Convergint Australia Pty Ltd & ETU Enterprise Agreement 2021 – 2025

An application has been made for approval of an enterprise agreement known as the Convergint Australia 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 17 October 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 court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought approval for the Convergint Australia Pty Ltd & ETU Enterprise Agreement 2021 – 2025. The dispute arose under the Fair Work Act 2009, where the union submitted the enterprise agreement for registration, necessitating the court to assess whether the agreement complied with the statutory requirements.

The court was required to determine whether the enterprise agreement met the criteria outlined in the Fair Work Act. This involved examining whether the agreement was made in good faith and whether it contained the necessary provisions, such as minimum rates of pay and other terms and conditions of employment. Additionally, the court needed to consider whether the agreement had been appropriately negotiated and whether it was consistent with the Fair Work (Registered Organisations) Act 2009.

In delivering the decision, the court meticulously reviewed the documentation and submissions provided. It found that the enterprise agreement was negotiated in good faith and contained all the necessary provisions as stipulated by the Fair Work Act. The court was satisfied that the agreement was consistent with the requirements of the Act and did not contain any terms that were contrary to public policy. Consequently, the court approved the application for the enterprise agreement.

The court ordered that the Convergint Australia Pty Ltd & ETU Enterprise Agreement 2021 – 2025 be approved and registered under the Fair Work Act. This decision provided certainty and legal recognition to the agreement, allowing it to be enforced between the parties involved.

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