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

[2024] FWCA 3505

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

(AG2024/3795)

IT CONNECT PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 4 OCTOBER 2024

Application for approval of the IT Connect Pty Ltd and ETU Enterprise Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the IT Connect 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)Part A Clause 35.4(a)(ii): Public holidays – substitution to another day
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 11 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 case before the Fair Work Commission involved an application for approval of the IT Connect Pty Ltd and ETU Enterprise Agreement 2021-2025. The applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought approval for the proposed enterprise agreement between IT Connect Pty Ltd and its employees, as represented by the union. The dispute centred around whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act. This involved examining whether the agreement covered the correct bargaining units, whether it provided for the appropriate minimum terms and conditions, and whether it adhered to the procedural requirements for negotiation and approval. The Commission also had to consider whether the agreement was in the best interests of the employees and whether it facilitated effective enterprise bargaining.

The Commission found that the proposed agreement was procedurally valid and met the requirements for approval. The agreement was negotiated in good faith, and the union had appropriately represented the employees. The Commission considered the provisions of the agreement and found that they provided for the correct bargaining units and included the mandated minimum terms and conditions. Furthermore, the agreement was deemed to be in the best interests of the employees, as it facilitated effective enterprise bargaining and provided for fair and reasonable terms. The Commission approved the proposed agreement, finding it to be compliant with the Fair Work Act.

In approving the agreement, the Commission made an order that the IT Connect Pty Ltd and ETU Enterprise Agreement 2021-2025 be approved as a registered agreement under the Fair Work Act. The agreement now binds the employer and all employees within the specified bargaining units, providing the basis for their employment terms and conditions for the duration of the agreement.

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