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

[2024] FWCA 3127

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

(AG2024/3126)

MIRIKLIS EARTHMOVING PTY LTD (T/A XPOWER) & ETU POWERLINE ENTERPRISE AGREEMENT 2023 - 2026

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 27 AUGUST 2024

Application for approval of the Miriklis Earthmoving Pty Ltd (T/A XPower) & ETU Powerline Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Miriklis Earthmoving Pty Ltd (T/A XPower) & 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

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 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval for the Miriklis Earthmoving Pty Ltd (trading as XPower) and ETU Powerline Enterprise Agreement 2023-2026, in a matter brought before the Fair Work Commission. The agreement in question was negotiated between the union and the employer and aimed to establish terms and conditions of employment for the workers involved. The union argued that the agreement should be approved as it represented a fair and reasonable bargain in line with the objectives of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the terms and conditions outlined in the agreement met the statutory requirements for approval under the Fair Work Act. Specifically, the Commission needed to determine if the agreement was procedurally sound, fair, and balanced, and if it contained all the mandated minimum terms and conditions. The union contended that the agreement was fair and reasonable, while the employer argued that certain terms were overly stringent and would impose undue financial burdens.

The Fair Work Commission, after reviewing the terms of the agreement and the submissions from both parties, found that the agreement was largely fair and reasonable. The Commission noted that the agreement contained all the mandated minimum terms and conditions and was negotiated in good faith. The Commission also found that while some terms were stringent, they were necessary to protect the interests of the workers. Consequently, the Commission approved the agreement, subject to certain modifications to address minor procedural issues.

The Fair Work Commission ordered the approval of the Miriklis Earthmoving Pty Ltd (trading as XPower) and ETU Powerline Enterprise Agreement 2023-2026, with the modifications noted by the Commission. This decision ensures that the terms and conditions of employment for the workers involved are regulated by the approved agreement, providing clarity and stability in the employment relationship.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established