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

[2023] FWCA 1997

[2023] FWCA 1997

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

(AG2023/1786)

FIP ELECTRICAL PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022 - 2025

Electrical contracting industry
COMMISSIONER MATHESON	SYDNEY, 30 JUNE 2023

Application for approval of the FIP Electrical Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022 - 2025

1. An application has been made for approval of an enterprise agreement known as the FIP Electrical Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 (Agreement). The application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The notification time for the Agreement is a date prior to 6 June 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

1. Further, the Agreement was made prior to 6 June 2023 and the effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. An error was made in the application in that the name of the employer covered by the Agreement was incorrectly stated as ‘F.I.P Electrical Pty Ltd’ rather than ‘F.I.P. Electrical (NSW) Pty Ltd’. The Applicant applied for a correction such that the name of the employer covered by the Agreement is stated in the Application as ‘F.I.P. Electrical (NSW) Pty Ltd’. Pursuant to s.586 of the Act, I allow the correction.

2. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2023. The nominal expiry date of the Agreement is 31 October 2025.

1. The Applicant makes an application pursuant to s.218A of the Act to vary the Agreement to correct or an amend an obvious error, defect or irregularity (whether in substance or form). In particular, the term ‘Company’ is defined in clause 3(a)(iv) of the Agreement as ‘FIP Electrical Pty Ltd (ABN 62 066 085 578)’. Further the term ‘Employee(s)’ is defined in clause 3(a)(vii) as ‘an employee of FIP Electrical Pty Ltd performing Work within the scope of this Agreement’. The correct name of the employer is ‘F.I.P. Electrical (NSW) Pty Ltd’. This is an obvious error and pursuant to s.218A of the Act, the Agreement is varied such that references to ‘FIP Electrical Pty Ltd’ in the Agreement are replaced with ‘F.I.P. Electrical (NSW) Pty Ltd’.

COMMISSIONER

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