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

[2024] FWCA 3215

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

(AG2024/3303)

HEALEY INFRASTRUCTURE PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2023 - 2026

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 9 SEPTEMBER 2024

Application for approval of the Healey Infrastructure Pty Ltd & ETU Powerline Enterprise Agreement 2023 - 2026

An application has been made for approval of an enterprise agreement known as the Healey Infrastructure 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 – stillbirth 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 16 September 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 case before the court involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Applicant") for approval of the Healey Infrastructure Pty Ltd & ETU Powerline Enterprise Agreement 2023 - 2026 (the "Agreement"). The Applicant sought to have the Agreement registered as a protected action (no-action) agreement under the Fair Work Act 2009 (Cth). The court was tasked with determining whether the Agreement met the statutory requirements for approval, specifically focusing on whether it provided for a fair and efficient resolution of workplace disputes.

The primary legal issue before the court was whether the Agreement complied with the statutory criteria for approval. This involved examining whether the Agreement contained a dispute resolution process that was fair, efficient, and did not unfairly discriminate against employees. The court also needed to consider whether the Agreement provided for adequate protections for employees, including provisions for consultation and dispute resolution, and whether it complied with the requirements for a protected action (no-action) agreement under the Fair Work Act 2009 (Cth).

In reaching its decision, the court examined the contents of the Agreement and the submissions made by the Applicant. The Applicant argued that the Agreement provided for a fair and efficient dispute resolution process and contained adequate protections for employees. The court found that the Agreement did meet the statutory requirements for approval, including the inclusion of a dispute resolution process that was fair and efficient. The court also found that the Agreement provided for adequate protections for employees and did not unfairly discriminate against them. The court was satisfied that the Agreement complied with the requirements for a protected action (no-action) agreement under the Fair Work Act 2009 (Cth).

The court approved the Agreement as a protected action (no-action) agreement and ordered that it be registered as such under the Fair Work Act 2009 (Cth). The court's decision was based on its finding that the Agreement met the statutory requirements for approval and provided for a fair and efficient dispute resolution process, as well as adequate protections for employees. The court's decision provides guidance to unions and employers on the requirements for a protected action (no-action) agreement under the Fair Work Act 2009 (Cth).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established