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

[2024] FWCA 3559

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

(AG2024/3847)

FIRE SERVICE SPECIALISTS PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 10 OCTOBER 2024

Application for approval of the Fire Service Specialists Pty Ltd & ETU Enterprise Agreement 2021 – 2025

An application has been made for approval of an enterprise agreement known as the Fire Service Specialists 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 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 Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to approve the Fire Service Specialists Pty Ltd & ETU Enterprise Agreement 2021 – 2025. The union sought approval under section 234 of the Fair Work Act 2009, arguing that the agreement met the requirements for registration as a single interest employer agreement. The employer, Fire Service Specialists Pty Ltd, did not oppose the application, but raised concerns about the agreement's impact on its business operations.

The central legal issues before the Commission were whether the agreement met the statutory criteria for registration and whether any provisions within the agreement contravened the provisions of the Fair Work Act or the principles of good faith bargaining. The Commission needed to determine if the agreement was genuinely a single interest employer agreement, if it contained terms and conditions of employment that adhered to the Fair Work Act, and if it was made in good faith.

In its decision, the Fair Work Commission found that the agreement was a genuine single interest employer agreement and met the necessary criteria for registration. The Commission considered the nature of the employer's business, which involved specialised services that required highly skilled and qualified employees, and concluded that the agreement appropriately reflected the employer's specific needs. The Commission also found that the agreement's terms and conditions of employment were consistent with the Fair Work Act and did not contravene any of its provisions. Furthermore, the Commission was satisfied that the agreement had been made in good faith, as evidenced by the union's and employer's conduct throughout the bargaining process.

As a result of the Commission's findings, the application for approval of the Fire Service Specialists Pty Ltd & ETU Enterprise Agreement 2021 – 2025 was approved and registered under the Fair Work Act. The agreement now serves as a legally binding contract between the employer and the union, governing the terms and conditions of employment for the relevant employees.

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