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

[2022] FWCA 3151

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

(AG2022/3579)

Menco Electrical & Data & CEPU South Australian Enterprise Agreement 2022

Electrical contracting industry
DEPUTY PRESIDENT MOLTONI	BRISBANE, 9 SEPTEMBER 2022

Application for approval of the Menco Electrical & Data & CEPU South Australian Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Menco Electrical & Data & CEPU South Australian Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – South Australian Divisional Branch (the Applicant). The Agreement is a single enterprise agreement.

The application was required to be filed within 14 days after it was made on 12 August 2022 in accordance with s.185(3) of the Act. As it was not filed until 27 August 2022, it was filed one day after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have been issued in the form of a letter and contains additional text. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – South Australian Divisional Branch (CEPU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") and Menco Electrical & Data, along with CEPU South Australian Enterprise (the "Employers"). The Union sought approval of the Menco Electrical & Data & CEPU South Australian Enterprise Agreement 2022 (the "Agreement") under the Fair Work Act 2009 (Cth). The Union argued that the Agreement should be approved as a certified agreement, while the Employers contested the application on the grounds that it was not a genuine enterprise agreement.

The court was required to determine whether the Agreement met the statutory requirements for approval as a certified agreement. Specifically, the court had to assess if the Agreement was genuinely an agreement for the purposes of the Act and whether the agreement was made in accordance with the requirements of the Act. The Union needed to demonstrate that the Agreement was a genuine enterprise agreement, which was made in good faith and for the purpose of regulating the terms and conditions of employment.

The court considered the process through which the Agreement was made and the extent of employee participation. The Union submitted that the Agreement was genuinely negotiated and was made in accordance with the requirements of the Act. The Employers argued that the Agreement was not genuinely negotiated and was not made in good faith. After reviewing the evidence, the court found that the Agreement was genuinely negotiated and was made in good faith. The court determined that the Agreement met the statutory requirements for approval as a certified agreement.

Accordingly, the court approved the Agreement as a certified agreement. The Union's application for approval of the Menco Electrical & Data & CEPU South Australian Enterprise Agreement 2022 was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established