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

[2022] FWCA 1626

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

(AG2022/1379)

Key HR Electrical Services & ETU Powerline Enterprise Agreement 2020-2023

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 MAY 2022

Application for approval of the Key HR Electrical Services & ETU Powerline 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 Key HR Electrical Services & ETU Powerline 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.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 17 May 2022 and, in accordance with s 54, will operate from 24 May 2022. The nominal expiry date of the Agreement is 31 August 2023.

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, on behalf of employees, and Key HR Electrical Services Pty Ltd, an employer, sought approval of the Key HR Electrical Services & ETU Powerline Enterprise Agreement 2020-2023. The Union contended that the agreement adequately reflected the terms and conditions of employment for the employees, while the employer argued that certain provisions in the agreement should be disallowed as they were not compliant with the Fair Work Act 2009.

The primary legal issues before the Commission were whether certain provisions of the agreement contravened the Act, and if so, whether those provisions could be rendered compliant through variation or should be disallowed outright. The Commission examined several sections of the agreement, including those pertaining to employee classification, pay rates, and working conditions. The Commission was tasked with ensuring that the agreement met the criteria for approval under the Act, which includes provisions for genuine bargaining, fairness, and public interest considerations.

The Commission found that while the majority of the agreement reflected genuine bargaining and was fair to the employees, certain provisions did contravene the Act. Specifically, the Commission determined that some pay rates and conditions were not in line with the requirements for approval. After considering submissions from both parties, the Commission decided that the provisions could be varied to achieve compliance. The variations included adjustments to the pay rates and conditions to align with the statutory requirements. The Commission approved the agreement, with the specified variations, finding that it now met the necessary criteria for approval.

The final orders of the Commission were that the Key HR Electrical Services & ETU Powerline Enterprise Agreement 2020-2023 be approved, subject to the variations made to certain provisions. The agreement was to come into effect from the date of the Commission's decision, with the varied terms to be implemented accordingly. The Commission's decision ensured that the agreement complied with the Fair Work Act 2009 and addressed the concerns raised by both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established