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

[2022] FWCA 2658

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

(AG2022/3124)

A2B Personnel Pty Ltd and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 AUGUST 2022

Application for approval of the A2B Personnel Pty Ltd and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of an enterprise agreement known as the A2B Personnel Pty Ltd and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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 and 188 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 5 August 2022 and, in accordance with s 54, will operate from 12 August 2022. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated an application for approval of the A2B Personnel Pty Ltd and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023. The agreement was made between the union and A2B Personnel Pty Ltd, covering employees involved in the Melbourne Metro Tunnel project. The union sought approval for the agreement under the Fair Work Act 2009, which requires certain enterprise agreements to be registered with the Fair Work Commission before they can take effect.

The primary legal issues before the commission were whether the agreement complied with the formal requirements of the Fair Work Act and whether it met the ‘better off overall test’ (BOOT), which ensures that the agreement is not detrimental to the employees. The union argued that the agreement was properly formed, met all statutory requirements, and provided fair and reasonable terms and conditions for the employees. The commission needed to consider whether the agreement was genuinely negotiated and whether it provided a safety net for employees, ensuring their terms and conditions were no worse than those provided by the applicable award or safety net award.

The commission found that the agreement was properly negotiated and complied with all formal requirements. It noted that the union had demonstrated a genuine effort to negotiate with the employer and that the agreement provided fair and reasonable terms for the employees. The commission further determined that the agreement met the BOOT, as it provided employees with terms and conditions that were at least as good as, and in some cases better than, those provided by the applicable award. The commission approved the agreement, finding that it was in the best interests of the employees and did not place them at a disadvantage.

The Fair Work Commission approved the A2B Personnel Pty Ltd and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023. The decision was made on the basis that the agreement was properly negotiated, complied with all formal requirements, and provided fair and reasonable terms and conditions for the employees. The commission found that the agreement met the better off overall test, as it provided employees with terms and conditions that were at least as good as, and in some cases better than, those provided by the applicable award. The approval of the agreement means that it can now take effect and provide the agreed terms and conditions to the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established