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

[2024] FWCA 3522

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

(AG2024/3741)

HART ELECTRICS PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 7 OCTOBER 2024

Application for approval of the Hart Electrics Pty Ltd and ETU Enterprise Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the Hart Electrics Pty Ltd and 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)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 14 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

In the case of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the union sought approval for the Hart Electrics Pty Ltd and ETU Enterprise Agreement 2021-2025. The union argued that the agreement met the necessary criteria for approval under the Fair Work Act 2009. The application was heard in the Fair Work Commission, which is responsible for the resolution of workplace disputes in Australia.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act. The union had to demonstrate that the agreement was a genuine enterprise agreement, was made in good faith, and contained the necessary minimum terms and conditions of employment. Additionally, the Commission had to consider whether the agreement met the requirements for being a low-paid, low-paid industry or small business enterprise agreement, as these categories have specific criteria that must be satisfied.

The Fair Work Commission examined the application in detail, taking into account the evidence provided by the union and the submissions made by the parties. The Commission found that the agreement satisfied the statutory requirements for approval and was a genuine enterprise agreement made in good faith. The agreement contained the necessary minimum terms and conditions of employment and met the requirements for being a low-paid industry enterprise agreement. The Commission concluded that the agreement was in the best interests of the employees and the employer, and it approved the application for the Hart Electrics Pty Ltd and ETU Enterprise Agreement 2021-2025.

The Fair Work Commission approved the application for the Hart Electrics Pty Ltd and ETU Enterprise Agreement 2021-2025, confirming that the agreement met the necessary criteria under the Fair Work Act. This decision ensures that the employees of Hart Electrics Pty Ltd will be covered by a fair and reasonable enterprise agreement for the next four years.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established