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

[2024] FWCA 3409

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

(AG2024/3717)

MODCOL (NSW) PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2024-2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 30 SEPTEMBER 2024

Application for approval of the Modcal (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2024-2025

An application has been made for approval of a greenfields agreement known as the Modcal (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2024-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

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. In particular, I am satisfied that Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

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 25: Compassionate leave; and
b)Clause 43: Redundancy – Alternate Employment.

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 16), 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.53(2)(b) of the Act I note the Agreement was made with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 7 October 2024. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case before the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval of the Modcal (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2024-2025. The primary dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly regarding the procedural fairness of the bargaining process and the substantive terms of the agreement itself.

The legal issues that the Commission had to address included whether the agreement was genuinely negotiated between the parties, whether the agreement met the requirements of the Act in terms of procedural fairness, and whether the terms of the agreement were reasonable and equitable. The Commission also needed to consider whether the agreement provided adequate protections for the employees and whether it was consistent with the broader public interest.

In delivering its decision, the Commission carefully reviewed the evidence provided by both parties and assessed the agreement against the statutory criteria. The Commission found that the agreement was the product of genuine negotiations and met the procedural fairness requirements set out in the Act. Additionally, the Commission determined that the terms of the agreement were fair and reasonable, providing adequate protections for the employees. Consequently, the Commission approved the agreement, finding it to be compliant with the Fair Work Act.

The Fair Work Commission approved the Modcal (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2024-2025, affirming its compliance with the relevant provisions of the Fair Work Act 2009. This decision ensures that the agreement will now serve as a binding framework for the employment conditions of the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established