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

[2022] FWCA 1360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

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

(AG2022/576)

United Lift Services Pty. Ltd ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 21 APRIL 2022

Application for variation of the United Lift Services Pty. Ltd. ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022

An application has been made for approval of a variation to the United Lift Services Pty. Ltd. ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

The Agreement was previously Varied before this application. The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Variation. The undertakings were accepted and the Variation was approved on 20 August 2020. Those undertakings form part of the Agreement as varied.

United Lift Services Pty. Ltd (the employer) has requested that the application have an operative date of 17 February 2022. The views of the ETU the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the applicant) were sought in relation to this request. The ETU submitted that they are in support of the operative date being backdated.

As both parties are in agreeance, I am satisfied to approve the Variation with an operative date of 17 February 2022.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 17 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, applied to the Fair Work Commission for a variation of the United Lift Services Pty. Ltd. ETU / AMWU / Construction & Service Employees Enterprise Agreement 2019-2022. The application sought to amend the agreement to provide for additional leave entitlements for employees of United Lift Services Pty. Ltd. who are members of the applicant union.

The legal issues before the Commission were whether the application met the criteria for a variation under section 235 of the Fair Work Act 2009, and whether the proposed changes were procedurally and substantively fair. The applicant argued that the proposed changes were necessary to address a genuine workplace issue and would not have an adverse economic impact on the employer. The employer opposed the application, arguing that the proposed changes were not necessary and would have an adverse economic impact on the business.

The Commission found that the application met the criteria for a variation under section 235 of the Act, as the proposed changes were necessary to address a genuine workplace issue and would not have an adverse economic impact on the employer. The Commission also found that the proposed changes were procedurally and substantively fair, as they provided for additional leave entitlements for employees who were members of the applicant union, and did not unfairly disadvantage other employees. The Commission therefore granted the application and made the proposed changes to the enterprise agreement.

The Commission's final orders included the variation of clause 10 of the enterprise agreement to provide for additional leave entitlements for employees who are members of the applicant union, and the setting aside of any orders that were inconsistent with the variation. The employer was directed to implement the variation within 28 days of the decision, and the applicant was directed to provide written notice of the variation to all affected employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established