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

[2024] FWCA 2800

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

(AG2024/2646)

VANCELEC PTY LTD & ETU GREENFIELDS AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 30 JULY 2024

Application for approval of the Vancelec Pty Ltd & ETU Greenfields Agreement 2021-2025

An application has been made for approval of a greenfields agreement known as the Vancelec Pty Ltd & ETU Greenfields Agreement 2021-2025 (the Agreement). The application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

The Applicant has provided written undertakings, and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

· Clause 20.1(a) – Notice

However, noting clause 4.1(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 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 concerned an application for the approval of an enterprise agreement between Vancelec Pty Ltd and the Electrical Trade Union (ETU) for the period 2021-2025. The ETU sought approval for the agreement, which had been negotiated with the employer, to ensure its provisions would be legally binding on the parties involved. The dispute revolved around the procedural and substantive validity of the agreement, including whether it met the requirements of the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement was fairly negotiated, contained permissible content, and adhered to the procedural requirements outlined in the Fair Work Act. Specifically, the Commission needed to determine if the agreement was made in good faith, if it provided for fair and reasonable terms and conditions, and if the necessary consultation processes were followed. Additionally, the Commission examined whether the agreement included provisions that were outside the scope of what could be lawfully included in such agreements.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, determined that the agreement was fairly negotiated and contained permissible content. The Commission found that the ETU had followed the required consultation processes and that the terms and conditions of the agreement were fair and reasonable. The Commission also concluded that the agreement did not contain any provisions that were outside the scope of what could be lawfully included. Consequently, the Commission approved the Vancelec Pty Ltd & ETU Greenfields Agreement 2021-2025, making it a legally binding enterprise agreement between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established