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

[2022] FWCA 1361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

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

(AG2022/1060)

Australian Sound Service Pty. Ltd. ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 20 APRIL 2022

Application for approval of the Australian Sound Service 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 Australian Sound Service 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 20 April 2022 and, in accordance with s 54, will operate from 27 April 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

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval of the Australian Sound Service Pty. Ltd. ETU Enterprise Agreement 2021 – 2025. The agreement was intended to establish the terms and conditions of employment for certain employees of the company, and the union argued that it met the requirements for approval under the Fair Work Act 2009. The company opposed the application, raising concerns about certain provisions in the agreement.

The legal issues before the Commission centred on whether the agreement complied with the statutory requirements for enterprise agreements under the Fair Work Act. Specifically, the Commission had to determine whether the agreement provided for terms and conditions of particular importance, and whether it had been made in good faith and without coercion. The Commission also had to consider whether the agreement met the "better off overall test", which required that the agreement not be less favourable to the employees than the applicable awards or other relevant agreements.

After hearing evidence and submissions from both parties, the Commission found that the agreement met the requirements for approval under the Fair Work Act. The Commission was satisfied that the agreement provided for terms and conditions of particular importance, and that it had been made in good faith and without coercion. The Commission also found that the agreement met the better off overall test, as the employees would be better off overall if the agreement were to be approved. Accordingly, the Commission approved the agreement, and it will now apply to the employees of Australian Sound Service Pty. Ltd. from 1 July 2021.

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