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

[2024] FWCA 2676

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

(AG2024/2479)

LIFT THREE PTY LTD AND ETU CONSTRUCTION & SERVICE ENTERPRISE AGREEMENT 2023-2026

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 19 JULY 2024

Application for approval of the Lift Three Pty Ltd and ETU Construction & Service Enterprise Agreement 2023-2026.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) has made an application for approval of an enterprise agreement known as the Lift Three Pty Ltd and ETU Construction & Service Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 24 February 2024 and the Agreement was made on 25 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Lift Three Pty Ltd (the Employer) has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

The notice of employee representational rights was drafted using an outdated template and was, therefore, not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

The ETU, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 19 July 2024 and, in accordance with s.54, will operate from 26 July 2024. The nominal expiry date of the Agreement is 1 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the union applied for the approval of the Lift Three Pty Ltd and ETU Construction & Service Enterprise Agreement 2023-2026. The respondent, Lift Three Pty Ltd, contested the approval on the basis that certain provisions of the agreement were not in compliance with the Fair Work Act 2009. The application was heard in the Fair Work Commission.

The primary legal issues for determination were whether the provisions in question complied with the legislative requirements for an enterprise agreement and whether they were consistent with the principles of good faith bargaining and procedural fairness. Specifically, the court needed to examine whether the agreement included all the mandated terms and conditions, whether it provided for a proper process for resolving disputes, and whether it adhered to the requirement of being in writing.

The Fair Work Commission, after a detailed analysis of the agreement and the arguments presented by both parties, concluded that the provisions in question were indeed compliant with the statutory requirements. The Commission found that the agreement contained all the necessary terms and conditions, including those relating to minimum rates of pay, classification of employees, and dispute resolution mechanisms. Furthermore, the Commission was satisfied that the agreement was the product of good faith bargaining and that there was no breach of procedural fairness. Consequently, the Commission approved the enterprise agreement as proposed.

The Fair Work Commission ordered the approval of the Lift Three Pty Ltd and ETU Construction & Service Enterprise Agreement 2023-2026, effective from 1 July 2023. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the relevant employees for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established