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

[2024] FWCA 3202

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

(AG2024/3133)

AUSTUNNEL (VIC) PTY LTD & ETU GREENFIELDS AGREEMENT 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 6 SEPTEMBER 2024

Application for approval of the Austunnel (VIC) Pty Ltd & ETU Greenfields Agreement 2021 – 2025

An application has been made for approval of a greenfields agreement known as the Austunnel (VIC) Pty Ltd & ETU Greenfields Agreement 2021 – 2025 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the 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.

The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 35.4(a) – Public Holidays; and
· Clause 20.1 – Notice.

However, noting clause 4.1(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2024. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval of the Austunnel (VIC) Pty Ltd & ETU Greenfields Agreement 2021 – 2025. The applicant union argued that the agreement met the requirements for approval under the Fair Work Act 2009. The employer contested the application, arguing that certain provisions of the agreement were not fair and reasonable.

The central legal issue before the Commission was whether the agreement contained terms that were fair and reasonable for the purposes of the Fair Work Act. The Commission needed to consider the nature of the agreement, the bargaining process, and whether the terms complied with the Act. It was also necessary to determine if the agreement provided for a safety net of minimum terms and conditions and if it included appropriate mechanisms for the resolution of workplace disputes.

The Commission found that the agreement contained terms that were fair and reasonable. It noted that the agreement provided for a safety net of minimum terms and conditions, and that it included appropriate mechanisms for the resolution of workplace disputes. The Commission also found that the agreement was the product of genuine bargaining and that it did not contain any terms that were unfair or unreasonable. Accordingly, the application for approval was successful.

The Commission approved the Austunnel (VIC) Pty Ltd & ETU Greenfields Agreement 2021 – 2025. The agreement is now registered under the Fair Work Act and will apply to the employees covered by the agreement. The employer and the union are bound by the terms of the agreement, and any disputes arising under the agreement must be resolved in accordance with the dispute resolution procedures set out in the agreement.

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