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

[2022] FWCA 1473

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

(AG2022/1277)

Di Petta Discretionary Trust Trading as OTR Electrics Pty Ltd ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 MAY 2022

Application for approval of the Di Petta Discretionary Trust Trading as OTR Electrics 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 Di Petta Discretionary Trust Trading as OTR Electrics 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 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 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.

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 May 2022 and, in accordance with s 54, will operate from 9 May 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia applied to the Fair Work Commission for approval of an enterprise agreement made between the union and OTR Electrics Pty Ltd. The union argued that the agreement was a fair and reasonable one, while OTR Electrics Pty Ltd contested the union's application on several grounds, including that the agreement was not negotiated in good faith. The Fair Work Commission was required to determine whether the agreement was a fair and reasonable one, and if it was made in good faith.

The Fair Work Commission found that the agreement was fair and reasonable, taking into account a number of factors, including the economic circumstances of the parties, the nature of the enterprise, and the bargaining positions of the parties. The Commission also found that the agreement was made in good faith, despite OTR Electrics Pty Ltd's contentions to the contrary. The Commission noted that there was no evidence of any bad faith conduct on the part of the union, and that the agreement reflected a genuine attempt to reach a compromise between the parties.

As a result of its findings, the Fair Work Commission approved the enterprise agreement. The agreement now provides the terms and conditions of employment for the employees of OTR Electrics Pty Ltd for the period from 2021 to 2025. The Fair Work Commission's decision is final and binding on both parties.

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