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

[2024] FWCA 2972

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

(AG2024/2973)

LYNNHURST PTY LTD (T/A ARTHUR CONTRACTING) & ETU POWERLINE ENTERPRISE AGREEMENT 2023-2026

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 12 AUGUST 2024

Application for approval of the Lynnhurst Pty Ltd (T/A Arthur Contracting) & ETU Powerline Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Lynnhurst Pty Ltd (T/A Arthur Contracting) & 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 two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 27.15: Compassionate leave – stillbirth; and
b)Clause 29(k): 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 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 19 August 2024. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

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CaseChat Overview and Summary

In the recent decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Fair Work Commission (FWC) was tasked with approving an enterprise agreement between the Union and Lynnhurst Pty Ltd (trading as Arthur Contracting). The Union sought approval of the proposed agreement, which was negotiated with ETU Powerline, aiming to cover a period from 2023 to 2026. The legal issues before the FWC centred on whether the agreement complied with the Fair Work Act 2009 (Cth), particularly the requirements for good faith bargaining and the provisions concerning minimum entitlements.

The FWC examined the negotiation process and the contents of the agreement to determine if it met the statutory criteria for approval. Key considerations included whether the Union and the employer had engaged in genuine bargaining and whether the proposed agreement provided for minimum terms and conditions, including pay rates, working conditions, and dispute resolution mechanisms. The FWC assessed submissions from both parties and considered relevant precedents and statutory requirements.

After thorough examination, the FWC concluded that the agreement reflected the outcome of genuine bargaining efforts and met all statutory requirements for approval. The FWC noted that the agreement provided for fair and reasonable terms and conditions, and it complied with the provisions of the Fair Work Act. Consequently, the FWC approved the proposed enterprise agreement, finding that it was in the best interests of the employees and the employer.

The FWC's decision was based on a detailed analysis of the negotiation process and the contents of the agreement. The Commission found that the Union and the employer had acted in good faith and that the agreement provided for adequate protections and benefits. The FWC's approval of the enterprise agreement ensures that the terms and conditions of employment for the relevant workers are regulated by the agreement, providing a stable framework for industrial relations in the period 2023-2026.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established