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

[2024] FWCA 3283

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

(AG2024/3559)

SOLID ELECTRICAL CONTRACTING PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 17 SEPTEMBER 2024

Application for approval of the Solid Electrical Contracting Pty Ltd & ETU Enterprise Agreement 2021 – 2025

An application has been made for approval of an enterprise agreement known as the Solid Electrical Contracting Pty Ltd & 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 term 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 24 September 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 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the employer, Solid Electrical Contracting Pty Ltd. The union sought approval of an enterprise agreement for the period 2021 to 2025. The primary dispute centred on the provisions of the proposed agreement, specifically whether they complied with the relevant legislative and regulatory frameworks. The matter was heard in the Fair Work Commission, which is responsible for adjudicating on the application for approval of enterprise agreements under Australian labour law.

The legal issues the court was required to decide included whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly concerning the coverage of employees, the process for agreement formation, and the substantive provisions within the agreement. The court also needed to determine if the agreement contained any terms that were against public policy or otherwise unenforceable. The union argued that the agreement was fairly negotiated and met all necessary criteria, while the employer raised concerns about specific provisions that it believed were overly restrictive or economically unviable.

The Fair Work Commission, after reviewing the submissions and evidence presented by both parties, found that the agreement substantially complied with the legal requirements. The commission noted that while some minor amendments were necessary to address specific concerns raised by the employer, the overall agreement was fairly negotiated and met the necessary criteria for approval. The court approved the enterprise agreement with the stipulation that the minor amendments be incorporated prior to final implementation. Consequently, the agreement was set to take effect from the date of the commission's decision, subject to the incorporation of the required changes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established