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

[2023] FWCA 1623

[2023] FWCA 1623

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

(AG2023/1389)

VIC TECH CONSULTING & CONSTRUCTION PTY LTD & ETU ENTERPRISE AGREEMENT GEELONG REFINERY 2023 – 2025

Electrical contracting industry
COMMISSIONER MATHESON	SYDNEY, 5 JUNE 2023

Application for approval of the Vic Tech Consulting & Construction Pty Ltd & ETU Enterprise Agreement Geelong Refinery 2023 - 2025

1. An application has been made for approval of an enterprise agreement known as the Vic Tech Consulting & Construction Pty Ltd & ETU Enterprise Agreement Geelong Refinery 2023 - 2025 (Agreement). The application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant or CEPU) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. An issue arose in relation to the wording of clause 1.1(b) of Part A of the Agreement and text included in the Notice of Employee Representational Rights in that the coverage described is inconsistent with the coverage as stated in clause 1.1 of the Agreement. The parties participated in a conference before the Commission on Friday, 2 June 2023 during which the Applicant and employer covered by the agreement confirmed that the intended coverage was as described in clause 1.1 of the Agreement, which states:

“1.1 This Agreement will be known as the Vic Tech Consulting & Construction Pty Ltd & ETU Enterprise Agreement Geelong Refinery 2023 – 2025 and covers and applies to:

(a)Vic Tech Consulting & Construction Pty Ltd** (ACN: 613 751 027

ABN: 24 613 751 027 ) (the “Employer”);

(b)the Employees of the Employer who work in the Geelong Refinery

located at Refinery Road, Corio VIC 3214 (“the Employee”)

(c)the Communications, Electrical, Electronic, Energy, Information,

Postal, Plumbing and Allied Services Union of Australia (the “Union”)”.

1. Both the Applicant and employer covered by the Agreement also clarified that the employees involved in the process for the making of the Agreement were those who fell within the coverage as stated in clause 1.1 of the Agreement which is reproduced above.

1. Having heard from the Applicant and employer covered by the Agreement, I am satisfied that a minor procedural or technical error has been made in the broader description of coverage in the NERR beyond what was intended by the parties. I am satisfied that the Agreement covers the employees described in clause 1.1 and that these employees are not likely to have been disadvantaged by the error. I am satisfied that the error does not, in itself, prevent the Agreement from being genuinely agreed in accordance with s.188 of the Act.

1. A further error was brought to the attention of the parties by the Commission in that the email provided to the Commission with the application and Form F17 as evidence that the employer complied with s.180(3) of the Act does not specify the voting method to be used. This was raised with the Applicant who indicated that the employees knew that the vote was to be conducted by a show of hands and that this did not impact genuine agreement. The Applicant noted that there was a large voting turnout to demonstrate this. The employer covered by the Agreement did not dispute this. In the circumstances of this matter and having regard to the voting turnout and submissions of the parties, to the extent the employer did not take all reasonable steps to notify employees of the voting method to be used by the start of the access period, I am satisfied that this is a minor procedural error, that employees covered by the agreement were not disadvantaged by it and that this error does not prevent the Agreement from being genuinely agreed in accordance with s.188 of the Act.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

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 12 June 2023. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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