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

[2024] FWCA 3282

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

(AG2024/3547)

MEGA SERVICES GROUP PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2024 - 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 17 SEPTEMBER 2024

Application for approval of the Mega Services Group Pty Ltd & ETU NSW/ACT Construction Union Agreement 2024 - 2025

An application has been made for approval of a greenfields agreement known as the Mega Services Group 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 (CEPU) 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 term relating to:

a)Clause 25: Compassionate leave – still birth consideration; and
b)Clause 43(a)(iii): 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(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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with CEPU and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 24 September 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

The matter before the Fair Work Commission involved an application by two unions, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the ETU NSW/ACT Construction Union, for approval of their collective agreement with Mega Services Group Pty Ltd, effective from 2024 to 2025. The application was brought forward to ensure that the terms of the agreement would be legally binding and recognised under Australian workplace laws. The Commission was tasked with evaluating whether the agreement met the necessary criteria under the Fair Work Act 2009, including whether it provided for a safety net of minimum entitlements and did not disadvantage employees in terms of pay and conditions compared to the applicable award.

The primary legal issue the Commission addressed was whether the proposed agreement complied with the statutory requirements set out in the Fair Work Act, specifically sections 233 and 234. These sections mandate that a registered agreement must provide for a safety net of minimum entitlements and must not include terms that are less favourable to employees than the relevant industrial instrument. The Commission also considered whether the agreement contained any terms that might be contrary to public policy or be otherwise unenforceable. A secondary issue was whether the agreement adequately covered all aspects of employee relations and provided for proper dispute resolution mechanisms.

In reaching its decision, the Commission carefully examined the provisions of the agreement to determine if it met the legal standards. It found that the agreement provided for a safety net of minimum entitlements, ensuring that employees were not disadvantaged in terms of pay and conditions. The Commission also confirmed that the agreement did not include any terms that were contrary to public policy or otherwise unenforceable. Additionally, the agreement contained appropriate dispute resolution mechanisms, which were deemed adequate to address any employment-related issues that might arise during the term of the agreement. Based on this assessment, the Commission approved the agreement, recognising it as a lawful and enforceable instrument under the Fair Work Act.

The final orders of the Commission were to approve the Mega Services Group Pty Ltd & ETU NSW/ACT Construction Union Agreement 2024-2025, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would be binding on all parties involved, providing a framework for the employment conditions of the workers within the scope of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established