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

[2024] FWCA 2219

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

(AG2024/1991)

FAT COMMS SERVICES PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 14 JUNE 2024

Application for approval of the FAT Comms Services Pty Ltd & ETU Enterprise Agreement 2021 – 2025

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of an enterprise agreement known as the FAT Comms Services Pty Ltd & ETU Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the employees were not provided with the notice of employee representational rights (NERR) within 14 days of notification time. However, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(5)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

The employer has provided a written undertaking, a copy of which 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 it 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 ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The CEPU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the CEPU.

The Agreement was approved on 14 June 2024.

DEPUTY PRESIDENT
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 to the Fair Work Commission for approval of the FAT Comms Services Pty Ltd & ETU Enterprise Agreement 2021 – 2025. The application was made pursuant to section 232 of the Fair Work Act 2009, which requires that an enterprise agreement be approved if it meets certain criteria, including that it does not allow for terms and conditions worse than those provided by a relevant award or safety net award. The dispute centred on whether the proposed agreement complied with these statutory requirements.

The primary legal issue was whether the terms and conditions of the proposed agreement were, in all respects, not less favourable than those provided by the relevant safety net award. The union argued that the agreement was compliant, while the employer contended that certain provisions were less favourable and thus required rejection. The court had to examine each clause of the agreement against the benchmark of the applicable award to determine whether it was less favourable and, if so, whether any such provisions were capable of being removed without altering the substantive nature of the agreement.

The Fair Work Commission determined that while some provisions of the agreement were indeed less favourable than the safety net award, these could be excised without affecting the overall nature and purpose of the agreement. The court held that the remaining provisions of the agreement were compliant with the statutory requirements. The employer's argument that certain provisions were fundamental to the agreement and could not be removed was rejected. Consequently, the court approved the agreement, subject to the excision of the less favourable provisions.

The final orders of the court were that the FAT Comms Services Pty Ltd & ETU Enterprise Agreement 2021 – 2025 be approved with the specified excisions. The agreement was to be registered with the Fair Work Commission, and the parties were directed to provide a copy of the approved agreement to the Commission within ten days of the decision. The decision was made on the basis that the overall intent and fairness of the agreement were preserved, and the excisions did not undermine its fundamental purpose.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established