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

[2022] FWCA 2233

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

(AG2022/2039)

Wabtec Control Systems Pty Ltd and ETU Melbourne Metro Tunnel Greenfields Agreement 2020-2023

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 JULY 2022

Application for approval of the Wabtec Control Systems Pty Ltd and ETU Melbourne Metro Tunnel Greenfields 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 the Wabtec Control Systems Pty Ltd and ETU Melbourne Metro Tunnel Greenfields Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5) of the Act, I am satisfied that the CEPU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it, and that it is in the public interest to approve the Agreement.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CEPU and that the Agreement covers this organisation.

The Agreement was approved on 5 July 2022 and, in accordance with s 54, will operate from 12 July 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

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Wabtec Control Systems Pty Ltd. The agreement in question, the Wabtec Control Systems Pty Ltd and ETU Melbourne Metro Tunnel Greenfields Agreement 2020-2023, was sought to be approved by the Commission under section 235 of the Fair Work Act 2009. The Union sought approval of the agreement as a low-paid enterprise agreement under section 231 of the Act, seeking to exclude the agreement from the usual requirements of the Fair Work Act that it meet the better off overall test.

The primary legal issue before the Commission was whether the agreement met the criteria for approval as a low-paid enterprise agreement. This involved examining whether the agreement was genuinely an enterprise agreement and whether the employees covered by the agreement were low-paid within the meaning of section 172 of the Fair Work Act. The Commission was required to consider the nature and content of the agreement, as well as the circumstances of the employees, to determine whether the agreement could be approved without the need to meet the better off overall test.

The Commission determined that the agreement did indeed meet the criteria for approval as a low-paid enterprise agreement. The agreement was found to be genuinely an enterprise agreement as it was made in good faith and covered a defined enterprise. The employees were found to be low-paid as their ordinary rates of pay were below the relevant low-paid threshold. Given these findings, the Commission approved the agreement as a low-paid enterprise agreement and it will now be registered by the Commission. This means that the terms and conditions of the agreement will apply to the employees covered by it, without the need to meet the usual better off overall test.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established