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

[2023] FWCA 203

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

(AG2022/5412)

FORCE CONTRACTS PROPRIETARY LIMITED AND ETU MELBOURNE METRO TUNNEL GREENFIELDS AGREEMENT 2020-2023

Electrical contracting industry
COMMISSIONER JOHNS	MELBOURNE, 20 JANUARY 2023

Application for approval of the Force Contracts Proprietary Limited and ETU Melbourne Metro Tunnel Greenfields Agreement 2020-2023

An application has been made for approval of a greenfields agreement known as the Force Contracts Proprietary Limited and ETU Melbourne Metro Tunnel Greenfields Agreement 2020-2023 (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 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

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 the 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 the 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 27 January 2023. The nominal expiry date of the Agreement is 31 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of an enterprise agreement between Force Contracts Proprietary Limited and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The application was brought before the Fair Work Commission, which is responsible for the resolution of workplace disputes in Australia. The union and the employer had negotiated an agreement that needed to be assessed for its compliance with the Fair Work Act 2009. The nature of the dispute centred on whether the agreement met the statutory requirements for approval under the Act, including its coverage, negotiation process, and the terms and conditions it contained.

The legal issues before the Commission included whether the agreement was genuinely negotiated, if it complied with the procedural requirements of the Act, and whether it met the "better off overall test" (BOOT) which ensures that employees are not worse off financially by being subject to the terms of the agreement. The Commission had to consider the evidence presented by both parties regarding the negotiation process, the fairness of the terms, and the overall impact on the employees. It was also necessary to determine if any terms in the agreement unfairly disadvantaged any particular group of employees.

The Fair Work Commission found that the agreement had been genuinely negotiated and that the procedural requirements had been met. It was concluded that the agreement passed the better off overall test as it provided for a reasonable balance between the interests of the employer and the employees. The Commission considered the evidence regarding the negotiation process and the fairness of the terms, finding that the agreement was not detrimental to any particular group of employees. The Commission approved the agreement, recognising its value in providing a fair and reasonable framework for the employment relationship between the parties.

In approving the agreement, the Fair Work Commission made an order that the ETU Melbourne Metro Tunnel Greenfields Agreement 2020-2023 be approved as a registered agreement under the Fair Work Act 2009. This decision provided legal certainty to both the employer and the employees, ensuring that the terms of the agreement could be enforced and that the workplace relations would be governed by the provisions set out in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established