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

[2024] FWCA 2966

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

(AG2024/2901)

DALY’S CONSTRUCTIONS (AUST) PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2023-2026

Plumbing industry
COMMISSIONER JOHNS	MELBOURNE, 12 AUGUST 2024

Application for approval of the Daly’s Constructions (Aust) Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Daly’s Constructions (Aust) Pty Ltd & 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 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 19 August 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 matter before the Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for approval of the Daly’s Constructions (Aust) Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026. The union sought to have the agreement, which was negotiated between the union and the employer, formally recognised and approved under the Fair Work Act. The dispute centred on the terms of the agreement, which included provisions on wages, hours of work, and other employment conditions for employees of Daly’s Constructions and ETU Powerline.

The legal issues before the court included whether the agreement met the requirements for approval under the Fair Work Act. This involved examining whether the agreement was genuinely negotiated and whether it contained the minimum terms and conditions prescribed by the Act. The court also needed to determine whether the agreement complied with the "better off overall test", ensuring that employees were not worse off under the agreement compared to their previous conditions. Additionally, the court considered whether the agreement was made in good faith and without coercion.

The court found that the agreement was genuinely negotiated and met all the statutory requirements for approval. It was satisfied that the agreement contained the minimum terms and conditions stipulated by the Fair Work Act and that it passed the better off overall test. The court was also convinced that the agreement was made in good faith, without any evidence of coercion. Consequently, the Fair Work Commission approved the enterprise agreement, affirming its compliance with the necessary legal standards.

The court ordered the approval of the Daly’s Constructions (Aust) Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026, effective from the date of the decision. This approval ensures that the agreement is legally binding on the parties involved and that it provides a framework for the employment conditions of the workers under the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established