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

[2024] FWCA 2997

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

(AG2024/2976)

DYNAMIX BLUE PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 14 AUGUST 2024

Application for approval of the Dynamix Blue Pty Ltd & ETU Enterprise Agreement 2021– 2025

An application has been made for approval of an enterprise agreement known as the Dynamix Blue Pty Ltd & 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 – Substitution to another day; and
b)Part A Clause 20.1(a) and Part B Clause 20.1(a): Notice of Termination – Exclusion of apprentices.

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 21 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 court involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") for approval of the Dynamix Blue Pty Ltd & ETU Enterprise Agreement 2021– 2025 (the "Agreement"). The Union sought to have the Agreement approved as a registered agreement under the Fair Work Act 2009. The application was heard by the Fair Work Commission (the "Commission").

The primary legal issue before the Commission was whether the Agreement met the requirements of section 231 of the Fair Work Act for it to be approved as a registered agreement. Specifically, the Commission needed to determine whether the Agreement was in the public interest and whether it provided for appropriate mechanisms for dispute resolution. Additionally, the Commission had to consider whether the Agreement complied with the relevant provisions of the Fair Work Act and whether it met the minimum standards set out in the relevant modern awards.

The Commission found that the Agreement was in the public interest and provided for appropriate mechanisms for dispute resolution. The Agreement included provisions for the resolution of workplace disputes through conciliation, mediation, and arbitration. The Commission also found that the Agreement complied with the relevant provisions of the Fair Work Act and met the minimum standards set out in the relevant modern awards. The Commission approved the Agreement as a registered agreement under the Fair Work Act.

The Fair Work Commission approved the Dynamix Blue Pty Ltd & ETU Enterprise Agreement 2021– 2025 as a registered agreement under the Fair Work Act 2009. This decision provides certainty for both the Union and the employer, Dynamix Blue Pty Ltd, and ensures that the employees covered by the Agreement are protected by a fair and reasonable set of terms and conditions of employment.

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