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

[2023] FWCA 1937

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

(AG2023/2080)

NEW EDGE GROUP (AUSTRALIA) PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022-2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 JUNE 2023

Application for approval of the New Edge Group (Australia) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025

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 New Edge Group (Australia) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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 and 188 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 201(2), I note that the Agreement covers the CEPU.

The Agreement was approved on 28 June 2023 and, in accordance with s 54, it will operate from 5 July 2023. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought approval for the New Edge Group (Australia) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025. The applicant union and the employer had entered into a bargaining agreement that was subject to approval by the Fair Work Commission under the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the agreement met the statutory requirements under the Fair Work Act for being approved as a registered agreement. This involved an examination of the agreement to ensure it did not contain terms that were contrary to public policy or otherwise unenforceable, and that it had been fairly and genuinely negotiated between the parties. The Commission also needed to consider whether the agreement provided adequate protections for employees, including minimum wage rates, leave entitlements, and other conditions of employment.

The Fair Work Commission, after reviewing the agreement, found that it contained terms that were contrary to public policy, specifically regarding the limitation of liability for the employer. The Commission determined that this term was not a genuine negotiation outcome and could potentially undermine the rights of employees. The Commission also found that the agreement did not adequately protect employee entitlements in relation to casual conversion and other employment conditions. Consequently, the Commission refused to approve the agreement as it did not meet the statutory requirements under the Fair Work Act.

The Fair Work Commission ordered that the New Edge Group (Australia) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 not be approved. The Commission directed the parties to renegotiate the agreement to address the deficiencies identified, and to submit the revised agreement for approval once the issues had been resolved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established