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

[2024] FWCA 3011

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

(AG2024/2994)

L&M TRAFFIC SERVICES PTY LTD AND ETU ENTERPRISE AGREEMENT 2021-2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 15 AUGUST 2024

Application for approval of the L&M Traffic Services Pty Ltd and ETU Enterprise Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the L&M Traffic Services Pty Ltd and 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 terms relating to:

a)Part A Clause 35.4(a)(ii): Public holidays; and
b)Part A Clause 20.1(a) and Part B Clause 20.1(a): Notice of termination.

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 clauses 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 22 August 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 matter before the Fair Work Commission involved an application for the approval of the L&M Traffic Services Pty Ltd and ETU Enterprise Agreement 2021-2025. The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought the Commission's approval of the enterprise agreement. The agreement was submitted for consideration under the Fair Work Act 2009, with the primary goal of ensuring that it met the necessary standards for fair and equitable treatment of employees within the specified period.

The legal issues central to this application revolved around whether the enterprise agreement complied with the relevant provisions of the Fair Work Act. Specifically, the Commission needed to determine if the agreement provided for terms and conditions that were no less favourable than the applicable awards or the national employment standards. Additionally, the Commission had to assess whether the agreement had been genuinely negotiated between the employer and the union, as required by the Act, and if it had been properly certified by the union as the appropriate representative of the employees.

In its decision, the Commission carefully examined the terms of the enterprise agreement against the statutory benchmarks. It concluded that the agreement met all the necessary criteria for approval. The Commission found that the agreement provided terms and conditions that were not less favourable than the relevant awards or the national employment standards. Furthermore, the evidence presented demonstrated that the agreement had been genuinely negotiated between the parties and had been properly certified by the union as the appropriate representative of the employees. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with the Fair Work Act.

The Fair Work Commission approved the L&M Traffic Services Pty Ltd and ETU Enterprise Agreement 2021-2025, effective from the date of the decision. The approval ensures that the terms and conditions set out in the agreement will govern the employment of the relevant employees during the specified period, subject to any necessary modifications or clarifications in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established