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

[2024] FWCA 2962

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

(AG2024/2913)

DOORSPEC PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 12 AUGUST 2024

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

An application has been made for approval of an enterprise agreement known as the Doorspec 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: 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 19 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 case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought approval of the Doorspec Pty Ltd & ETU Enterprise Agreement 2021-2025. The matter was brought before the Fair Work Commission, where the union argued for the agreement's ratification, while the employer raised concerns about specific clauses.

The central legal issues addressed by the Commission revolved around whether certain provisions of the enterprise agreement were in compliance with the Fair Work Act 2009. The employer contested the fairness and reasonableness of particular terms, including those relating to penalty rates, shift allowances, and provisions concerning redundancies and terminations.

In reaching its decision, the Commission examined each clause in the context of the overall fairness of the agreement. It considered the nature of the bargaining process, the extent of the union's representation, and the balance of interests between the parties. The Commission concluded that, while some clauses could be improved, the agreement did not contain provisions that were unfair in a substantive sense. Therefore, it approved the enterprise agreement subject to specific modifications aimed at enhancing fairness and clarity.

The final orders included the approval of the Doorspec Pty Ltd & ETU Enterprise Agreement 2021-2025, with modifications to certain clauses to address the identified concerns. The Commission mandated that the employer and union collaborate to revise the affected provisions within a specified timeframe to ensure compliance 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