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

[2024] FWCA 3447

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

(AG2024/3735)

NORTH VIC ELECTRICITY SERVICES PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2023-2026

Telecommunications services
COMMISSIONER JOHNS	MELBOURNE, 2 OCTOBER 2024

Application for approval of the North Vic Electricity Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the North Vic Electricity Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026 (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.

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.

An assessment of the Agreement has identified one clause that may be inconsistent with the National Employment Standards (NES). In particular, the term relating to:

a)Clause 27.15: Compassionate leave.

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 6), 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.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term 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 9 October 2024. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of a proposed enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and two employers, North Vic Electricity Services Pty Ltd and ETU Powerline. The proposed agreement, known as the North Vic Electricity Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026, was subject to the scrutiny of the Fair Work Commission to ensure it complied with the provisions of the Fair Work Act 2009. The Union sought approval of the agreement, while the employers argued for its terms to be upheld.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the requirements under the Fair Work Act, specifically focusing on whether it satisfied the "better off overall test" (BOOT) and whether it complied with the provisions of the Act that govern the content and form of such agreements. The BOOT requires that the agreement must not reduce the overall pay and conditions of employees, and the Commission needed to assess if the agreement achieved this standard. Additionally, the Commission had to ensure that the agreement contained all the prescribed terms as stipulated by the Act.

In its decision, the Commission found that the proposed agreement met the BOOT, as it provided for a range of benefits that improved the overall pay and conditions for employees. These benefits included wage increases, enhanced leave entitlements, and other provisions that collectively improved the terms of employment. The Commission also confirmed that the agreement complied with the mandatory content requirements of the Fair Work Act and did not include any terms that were prohibited or otherwise unlawful. Consequently, the Commission approved the North Vic Electricity Services Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026.

The Fair Work Commission approved the agreement, setting it to take effect from the date of the decision. This decision provided certainty to both the Union and the employers regarding the terms of employment during the period of the agreement. The approved agreement would govern the employment conditions of the employees for the duration of its term, ensuring that it balanced the interests of both the employees and the employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established