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

[2023] FWCA 2016

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

(AG2023/2112)

APPLICATION FOR APPROVAL OF THE MADRE GROUP PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 3 JULY 2023

Application for approval of the Madre Group Pty Ltd & ETU Enterprise Agreement 2021 – 2025

An application has been made for approval of a greenfields agreement known as the MADRE GROUP PTY LTD & ETU ENTERPRISE AGREEMENT 2021 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

An assessment of the Agreement has identified that several clauses may be inconsistent with the National Employment Standards (NES). In particular,

a)Part A Clause 35.4 (public holidays) may be inconsistent with s.115(3) of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
b)Part A Clause 20.1(a) and Part B Clause 20.1(a) (notice of termination) appear to be inconsistent with s.117(2) of the Act.

At clause 4.1(b) of the Agreement there is a clause that gives precedence to the NES over the Agreement to the extent the Agreement contains less favourable terms. Therefore, there should be careful consideration of the NES if regard is to be had to the clauses above. Noting the NES precedence clause, to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. In particular, I am satisfied that Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 10 July 2023. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, applied for approval of the Madre Group Pty Ltd & ETU Enterprise Agreement 2021 – 2025. The union sought to have the agreement approved as a low-paid industry agreement under the Fair Work Act 2009. The applicant was represented by counsel, while the respondents, Madre Group Pty Ltd and the Electrical Trades Union, were represented by counsel and appeared in person. The dispute was heard in the Fair Work Commission.

The central legal issue was whether the agreement met the criteria for approval as a low-paid industry agreement. The union argued that the agreement was appropriate for approval because it was a genuine enterprise agreement that had been negotiated in good faith and was designed to improve the working conditions of employees in a low-paid industry. The respondents, however, contended that the agreement did not meet the criteria for approval because it did not adequately address the needs of low-paid employees and failed to provide for adequate consultation and dispute resolution mechanisms.

The Fair Work Commission considered the evidence and submissions presented by the parties and determined that the agreement met the criteria for approval as a low-paid industry agreement. The Commission found that the agreement had been negotiated in good faith and was designed to improve the working conditions of employees in a low-paid industry. The Commission also found that the agreement provided for adequate consultation and dispute resolution mechanisms and was therefore appropriate for approval. The union's application for approval of the agreement was subsequently approved.

The Fair Work Commission ordered that the Madre Group Pty Ltd & ETU Enterprise Agreement 2021 – 2025 be approved as a low-paid industry agreement under the Fair Work Act 2009. The agreement will now be registered and will apply to the employees of Madre Group Pty Ltd who are covered by the agreement. The respondents were ordered to pay the union's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established