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

[2023] FWCA 1413

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

(AG2023/1300)

A2B PERSONNEL PTY LTD AND ETU RAIL OVERHEAD SAFETY OBSERVER ENTERPRISE AGREEMENT 2021 – 2025

Rail industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 19 MAY 2023

Application for approval of the A2B Personnel Pty Ltd and ETU Rail Overhead Safety Observer Enterprise Agreement 2021 – 2025

An application has been made for approval of a greenfields agreement known as the A2B Personnel Pty Ltd and ETU Rail Overhead Safety Observer Enterprise Agreement 2021 – 2025 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of s. 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, 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.

I observe that clause 17 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

The Agreement was approved on 19 May 2023 and, in accordance with s.54, will operate from 26 May 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 and the employer applied to the Fair Work Commission for approval of an enterprise agreement. The union claimed that the agreement was made in good faith, and that the process for its making complied with the Fair Work Act 2009. The employer argued that the process for making the agreement was flawed. The court was required to determine whether the agreement was made in good faith and whether the process for making it complied with the Act.

The court found that the agreement was made in good faith and that the process for making it complied with the Act. The court found that the employer had not met its burden of proving that the process was flawed. The court found that the employer had not demonstrated that the union did not genuinely seek to make an agreement, or that the employer did not genuinely seek to be party to the agreement.

The court approved the enterprise agreement. The court made orders to this effect and declared that the agreement was to be taken to have been made on 1 July 2021. The court ordered that the agreement be registered with the Fair Work Commission.

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