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

[2022] FWCA 2694

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

(AG2022/3146)

Kelly Electrical & ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 9 AUGUST 2022

Application for approval of the Kelly Electrical & ETU Enterprise Agreement 2021 – 2025

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of the Kelly Electrical & ETU Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement. Subject to this undertaking, and 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, 188 and 190 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. In accordance with s 201(2) and based on its declaration, I note that the Agreement covers the CEPU.

The Agreement was approved on 9 August 2022 and, in accordance with s 54, will operate from 16 August 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Kelly Electrical & ETU Enterprise Agreement 2021 – 2025. The parties to the agreement were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Kelly Electrical Pty Ltd. The application was made under the Fair Work Act 2009, with the union seeking to have the agreement registered as a single-enterprise agreement. The nature of the dispute centred on whether the agreement met the legislative requirements for approval, including compliance with the better off overall test and the provision of various mandatory terms and conditions.

The key legal issues the court had to address were whether the agreement satisfied the statutory criteria for approval, particularly the better off overall test, and if it included all necessary mandatory terms and conditions. The court needed to ensure the agreement did not unfairly disadvantage employees and was in line with the legislative framework designed to protect workers' rights. Additionally, the court examined whether the agreement adhered to the procedural requirements, including proper notification and consultation with relevant parties.

In delivering its decision, the court found that the agreement met all the statutory requirements for approval. The better off overall test was satisfied, as the court determined that the agreement provided employees with benefits that were at least as good as those they would receive under the relevant awards or agreements. Furthermore, the court confirmed that all mandatory terms and conditions were included in the agreement. The procedural requirements were also met, with the union having properly notified and consulted with the relevant parties. As a result, the court approved the application and registered the agreement as a single-enterprise agreement.

The final orders of the court included the registration of the Kelly Electrical & ETU Enterprise Agreement 2021 – 2025 as a single-enterprise agreement, effective from the date of the decision. The court also ordered that the agreement be published on the Fair Work Commission's website, ensuring transparency and accessibility for all relevant parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established