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

[2023] FWCA 2694

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

(AG2023/2783)

GORDON MCKAY AND ETU ENTERPRISE AGREEMENT GEELONG REFINERY 2023 – 2025

Electrical contracting industry
DEPUTY PRESIDENT BELL	MELBOURNE, 23 AUGUST 2023

Application for approval of the Gordon McKay and ETU Enterprise Agreement Geelong Refinery 2023 – 2025.

An application has been made for approval of an enterprise agreement known as the Gordon McKay and ETU Enterprise Agreement Geelong Refinery 2023 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 19 May 2023 and the Agreement was made on 1 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 23 August 2023 and, in accordance with s.54 of the Act, will operate from 30 August 2023. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

[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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) seeking approval for the Gordon McKay and ETU Enterprise Agreement Geelong Refinery 2023 – 2025. The dispute centred on the terms and conditions of employment for workers within the refinery, and the role of the union in representing those workers. The Commission was tasked with determining whether the proposed agreement met the necessary legal standards for approval.

The legal issues before the Commission included whether the agreement provided for the fair and reasonable terms and conditions of employment, and whether it complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement adequately addressed minimum wages and conditions, provided for proper consultation and dispute resolution mechanisms, and did not unfairly discriminate against any class of employee.

After reviewing the agreement and hearing submissions from both the Applicant and the employer, the Commission found that the agreement met the necessary legal standards for approval. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, and included provisions for minimum wages and conditions, consultation and dispute resolution. The Commission also found that the agreement did not unfairly discriminate against any class of employee, and was therefore in compliance with the Fair Work Act. Based on these findings, the Commission approved the agreement, subject to certain minor modifications.

The Commission's final orders included approval of the Gordon McKay and ETU Enterprise Agreement Geelong Refinery 2023 – 2025, subject to modifications relating to the definition of "casual employee" and the calculation of penalty rates for shift work. The Commission also ordered that the agreement be registered with the Fair Work Commission, and that it take effect from the date of the Commission's decision.

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