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

[2022] FWCA 2603

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

(AG2022/3102)

One Diversified (Aust.) Pty Ltd & ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 AUGUST 2022

Application for approval of the One Diversified (Aust.) 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 an enterprise agreement known as the One Diversified (Aust.) 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 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 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 matter before the Fair Work Commission was an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for approval of the One Diversified (Aust.) Pty Ltd & ETU Enterprise Agreement 2021 – 2025. The dispute centred around whether the agreement met the necessary legal criteria for approval under the Fair Work Act 2009, including compliance with the Better Off Overall Test (BOOT). The Union argued that the proposed enterprise agreement would provide improved working conditions and benefits for its members, while the employer contended that the agreement imposed excessive costs and operational constraints.

The legal issues before the Commission involved determining whether the agreement satisfied the procedural and substantive requirements for approval, including compliance with the BOOT, which mandates that employees be no worse off and at least some employees be better off financially. The Commission had to assess the agreement's provisions against these criteria, particularly given the employer's concerns about the financial implications and the Union's emphasis on improved working conditions and employee welfare.

The Commission found that the proposed agreement did meet the BOOT, as it contained provisions that would result in some employees being better off financially, without any employees being worse off. The agreement included provisions for wage increases, improved leave entitlements, and enhanced job security measures, which collectively outweighed any financial burdens on the employer. The Commission also noted the employer's arguments but concluded that the overall benefits to employees justified the approval of the agreement. Consequently, the application for approval was successful.

The final orders of the Commission were that the One Diversified (Aust.) Pty Ltd & ETU Enterprise Agreement 2021 – 2025 be approved as a registered agreement under the Fair Work Act 2009. This decision will govern the employment conditions of the Union's members at One Diversified (Aust.) Pty Ltd for the specified period, ensuring that the agreement's provisions are implemented and enforced.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established