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

[2022] FWCA 1561

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

(AG2022/1310)

Elliot Airconditioning Controls Pty Ltd ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 11 MAY 2022

Application for approval of the Elliot Airconditioning Controls 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 Elliot Airconditioning Controls 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.

The application was not lodged within 14 days after the Agreement was made. Pursuant to s 185(3)(b), I consider it fair in all the circumstances to extend the time for making the application to the date it was actually made.

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 11 May 2022 and, in accordance with s 54, will operate from 18 May 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

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and its members against Elliot Airconditioning Controls Pty Ltd. The union sought approval of the Enterprise Agreement between the union and the employer for the years 2021 to 2025. The application was brought before the Fair Work Commission. The central legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the provisions relating to the bargaining process, fairness, and the substantive terms and conditions of employment.

The Fair Work Commission assessed the agreement against the legal criteria set out in the Fair Work Act. The union had to demonstrate that the agreement was the product of genuine bargaining, and that it was free from any improper influence or coercion. The Commission also examined whether the agreement provided for fair terms and conditions of employment, including provisions on wages, hours of work, and other employment conditions. The Commission took into account submissions from both parties, as well as any relevant industry benchmarks and economic factors. After careful consideration, the Commission found that the agreement was the result of genuine bargaining, was fair, and met the statutory requirements for approval.

Accordingly, the Fair Work Commission approved the Enterprise Agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Elliot Airconditioning Controls Pty Ltd for the period 2021 to 2025. The approval is subject to the agreement being registered with the Fair Work Commission. This decision provides certainty for the parties and ensures that the agreement is legally binding and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established