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

[2022] FWCA 2146

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

(AG2022/1997)

Williams Family Trust T/A RW Electrical Contracting Pty Ltd & ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 JUNE 2022

Application for approval of the Williams Family Trust T/A RW Electrical Contracting 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 Williams Family Trust T/A RW Electrical Contracting 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.

While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

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 29 June 2022 and, in accordance with s 54, will operate from 6 July 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision, the Fair Work Commission (FWC) was tasked with approving the proposed Enterprise Agreement (EA) between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and ETU Enterprise Agreement 2021 – 2025, which governs the employment conditions for employees of the Williams Family Trust trading as RW Electrical Contracting Pty Ltd. The dispute centred on whether the EA met the legal requirements for approval under the Fair Work Act 2009, particularly concerning the procedural fairness and the protection of employees' rights.

The legal issues before the FWC involved the scrutiny of the EA’s compliance with statutory provisions, including the requirement for genuine bargaining and procedural fairness. The applicant argued that the agreement was the product of genuine bargaining, while the objector raised concerns regarding the process followed in reaching the agreement and the adequacy of the protections afforded to employees. The FWC had to determine whether the EA was made in accordance with the prescribed process and whether it contained terms that were fair and reasonable.

In its decision, the FWC examined the evidence presented by both parties concerning the bargaining process and the terms of the EA. The Commission considered whether the union had genuinely represented the interests of the employees and whether the employer had provided a fair opportunity for negotiation. The FWC found that the EA was the result of genuine bargaining, with both parties having participated in the process in good faith. The terms of the agreement were deemed to be fair and reasonable, providing adequate protections for the employees while balancing the interests of the employer. Consequently, the FWC approved the EA, finding that it met the necessary legal standards for approval.

The final order of the FWC was that the ETU Enterprise Agreement 2021 – 2025, as presented by the applicant, be approved and registered under the Fair Work Act 2009. The Commission's decision confirmed the validity of the agreement, which will now govern the employment conditions of the employees of the Williams Family Trust trading as RW Electrical Contracting Pty Ltd for the specified period.

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