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

[2024] FWCA 1147

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

(AG2024/848)

LIMITLESS ENERGY AUSTRALIA PTY LTD & ETU GREENFIELDS AGREEMENT 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 APRIL 2024

Application for approval of the Limitless Energy Australia Pty Ltd & ETU Greenfields 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 Limitless Energy Australia Pty Ltd & ETU Greenfields Agreement 2021 – 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 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 has been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the CEPU 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 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.

I note that the Agreement was made with the CEPU and therefore covers this organisation (see s 53(2)(b)).

The Agreement was approved on 2 April 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia applied for approval of the Limitless Energy Australia Pty Ltd & ETU Greenfields Agreement 2021 – 2025. The union argued that the agreement met the necessary conditions under the Fair Work Act 2009, including that it provided for the better-off, overall test, and did not contain any provisions that would be contrary to public policy. The employer contested the approval, raising concerns about certain clauses in the agreement.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act. This involved assessing whether the agreement satisfied the better-off, overall test, which mandates that an employee must be no worse off financially as a result of the agreement, and whether any provisions within the agreement contravened public policy. The Commission also had to determine if the agreement had been genuinely negotiated between the parties.

The Fair Work Commission found that the agreement did meet the statutory requirements for approval. The Commission determined that the better-off, overall test was satisfied and that there were no provisions in the agreement that contravened public policy. The Commission noted that the agreement had been genuinely negotiated between the union and the employer, and that the employer had not demonstrated any significant detriment to its business operations as a result of the agreement. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Limitless Energy Australia Pty Ltd & ETU Greenfields Agreement 2021 – 2025, finding that it met all necessary statutory requirements under the Fair Work Act. The Commission concluded that the agreement satisfied the better-off, overall test and did not contain any provisions that contravened public policy. The Commission also found that the agreement had been genuinely negotiated 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