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

[2024] FWCA 1373

[2024] FWCA 1373

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

(AG2024/871)

FUJI ELEVATORS (VIC) PTY LTD ETU / AMWU / CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 17 APRIL 2024

Application for approval of the Fuji Elevators (VIC) Pty Ltd ETU / AMWU / Construction & Service Employees Enterprise Agreement 2024.

1. 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 Fuji Elevators (VIC) Pty Ltd ETU / AMWU / Construction & Service Employees Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. 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 27 October 2023 and the Agreement was made on 7 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. Fuji Elevators Australia 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.

1. 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.

1. The notice of employee representational rights provided to employees was 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). 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.

1. I observe that clause 38 regarding abandonment of employment is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 18 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The copy of the Agreement lodged with the application contained a typographical error in Appendix 3 which provided a rate of pay for employees classified as a Mechanical Fitter 5 of $520.48. My chambers notified the parties of the apparent typographical error, and on 8 April 2024, the ETU provided an amended copy of the Agreement which corrected the pay rate to $50.48. I am satisfied that the correction should be made and that it is appropriate to exercise my discretion to do so pursuant to s.586 of the FW Act.

1. The ETU and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the ETU and AMWU, I note that the Agreement covers these organisations.

1. The Agreement was approved on 17 April 2024 and, in accordance with s.54, will operate from 24 April 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A