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

[2024] FWCA 790

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

(AG2024/398)

SEMKEL ELECTRICS PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 MARCH 2024

Application for approval of the Semkel Electrics 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 Semkel Electrics 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.

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 1 March 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval for the Semkel Electrics Pty Ltd & ETU Enterprise Agreement 2021-2025. The dispute arose between the union and the employer, Semkel Electrics, with the union seeking to formalise the terms and conditions of employment for its members under the proposed agreement. The case was heard by the Fair Work Commission, which is the industrial relations tribunal with jurisdiction over such matters in Australia.

The primary legal issue before the commission was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the commission had to determine if the agreement was free from unlawful content, provided for procedural fairness, and was certified as meeting the "better off overall test" by the Fair Work Ombudsman. The union argued that the agreement was fair and lawful, while Semkel Electrics contended that certain provisions were unlawful or did not meet the better off overall test.

The commission carefully examined the terms of the proposed agreement, assessing whether it complied with the statutory requirements for approval. It found that the agreement was free from unlawful content and that it provided for procedural fairness. The commission also accepted the certification from the Fair Work Ombudsman that the agreement met the better off overall test, as it provided for improved terms and conditions for the employees covered by the agreement. Therefore, the commission concluded that the proposed enterprise agreement should be approved.

In its decision, the commission approved the Semkel Electrics Pty Ltd & ETU Enterprise Agreement 2021-2025, effective from the date of the decision. The agreement is now legally binding on the employer and the employees covered by it, setting out the terms and conditions of employment 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