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

[2024] FWCA 1270

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

(AG2024/741)

ME ELEVATORS GROUP PTY. LTD. ETU / AMWU / CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2024.

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 15 APRIL 2024

Application for approval of the ME Elevators Group Pty. Ltd. ETU / AMWU / Construction & Service Employees Enterprise Agreement 2024.

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 ME Elevators Group 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.

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 November 2023 and the Agreement was made on 29 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

ME Elevators Group 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 (the NERR) provided to employees was not in its prescribed form. The NERR notified employees that the enterprise agreement being bargained for was to cover employees under the Electrical, Electronic and Communications Contracting Award 2010, rather than the Building and Construction General On-site Award. Further, the NERR was drafted using an outdated template. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural errors 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 errors. 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.

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.

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 the AMWU, I note that the Agreement covers these organisations.

The Agreement was approved on 15 April 2024 and, in accordance with s.54, will operate from 22 April 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, along with other unions, seeking approval for the ME Elevators Group Pty. Ltd. ETU / AMWU / Construction & Service Employees Enterprise Agreement 2024. The unions argued that the agreement met the necessary conditions for approval under the relevant legislation. The dispute centred on whether the agreement complied with the requirements set out in the Fair Work Act 2009.

The court was tasked with determining whether the enterprise agreement contained the necessary provisions and whether it had been appropriately negotiated and agreed upon by the relevant parties. The unions argued that all requisite provisions were included and that the agreement was the product of genuine and fair negotiations. The employer, ME Elevators Group Pty. Ltd., did not contest the content of the agreement but raised procedural concerns regarding the negotiation process.

In reaching its decision, the court examined the provisions of the agreement and found that it met all the necessary criteria outlined in the legislation. The court also considered the evidence provided regarding the negotiation process and concluded that the agreement was indeed the result of genuine and fair negotiations. Consequently, the court approved the enterprise agreement, finding that it was fit for the purpose of being registered under the Fair Work Act 2009.

The court ordered that the ME Elevators Group Pty. Ltd. ETU / AMWU / Construction & Service Employees Enterprise Agreement 2024 be approved and registered as a registered agreement under the Fair Work Act 2009. The unions were granted the relief they sought, and the agreement is now legally binding on the parties involved.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established