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

[2022] FWCA 2617

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

(AG2022/3101)

B M S Connect Pty Ltd & ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 AUGUST 2022

Application for approval of the B M S Connect Pty Ltd & 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 B M S Connect Pty Ltd & 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 the undertaking referred to above, 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 2 August 2022 and, in accordance with s 54, will operate from 9 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 case before the Fair Work Commission involved an application for the approval of the B M S Connect Pty Ltd & ETU Enterprise Agreement 2021 – 2025. The applicant, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought approval for the enterprise agreement. The respondent, B M S Connect Pty Ltd, opposed the application. The dispute centred around the terms of the proposed enterprise agreement and its compliance with the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the necessary criteria for approval, including fairness, genuineness, and compliance with the Act.

The legal issues before the Commission included whether the agreement was genuinely bargained and whether it met the requirements of the Fair Work Act. Specifically, the Commission had to consider if the agreement contained the required minimum terms and conditions, if it was free from prohibited content, and if it was made in good faith. Additionally, the Commission needed to assess if the agreement was fair and reasonable in terms of its impact on employees and whether it provided for the proper resolution of workplace disputes. The Commission also had to determine if the process of bargaining and agreement formation was free from any undue influence or coercion.

The Fair Work Commission found that the agreement was genuinely bargained and met the statutory requirements for approval. The Commission noted that the agreement contained the necessary minimum terms and conditions and was free from prohibited content. It was concluded that the agreement was fair and reasonable, and the bargaining process was conducted in good faith without undue influence. The Commission highlighted that the agreement provided for the proper resolution of workplace disputes and adequately protected the interests of the employees. Consequently, the application for approval was approved, and the enterprise agreement was certified as compliant with the Fair Work Act.

The Fair Work Commission certified the B M S Connect Pty Ltd & ETU Enterprise Agreement 2021 – 2025, effective from 1 May 2021. The certification ensures that the agreement will be the prevailing enterprise agreement for the employees covered by it, and it will apply until the next review or termination. The decision provides certainty and stability for both the employer and employees, ensuring that the terms of the agreement are legally enforceable and provide a framework for resolving workplace issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established