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

[2024] FWCA 3374

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

(AG2024/3578)

4B CRANE HIRE PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2023 - 2026

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 26 SEPTEMBER 2024

Application for approval of the 4B Crane Hire Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the 4B Crane Hire 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 – still birth consideration.

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.

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 3 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 an enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and 4B Crane Hire Pty Ltd & ETU Powerline. The union sought to have the proposed agreement, which outlines terms and conditions of employment for the employees of the company, formally approved. The company, in turn, argued that certain provisions within the agreement should be rejected as they were considered to be unreasonable or contrary to the public interest.

The primary legal issues that the Commission needed to address included whether the agreement complied with the provisions of the Fair Work Act 2009 and whether any of the provisions were deemed to be unfair or unreasonable. Specifically, the Commission had to consider the fairness of the proposed agreement in terms of its compliance with the Better Off Overall Test (BOOT) and the public interest test. The BOOT requires that employees must be at least as well off under the new agreement as they would be under the previous agreement or the applicable award.

The Fair Work Commission concluded that the agreement met the requirements of the Better Off Overall Test, as the proposed changes were found to be beneficial to the employees overall. Furthermore, the Commission determined that none of the provisions were unreasonable or contrary to the public interest. The Commission noted that the agreement included provisions for pay rates, allowances, working conditions, and other terms that were fair and reasonable in the context of the bargaining process. Consequently, the Commission approved the enterprise agreement, and it became legally binding from the date of the decision.

As a result of the approval, the enterprise agreement between the union and the company is now enforceable, and the terms and conditions outlined within it will govern the employment relationship between the parties for the specified period. The approval by the Commission ensures that the agreement is in compliance with the Fair Work Act and that it meets the necessary standards for fairness and reasonableness.

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