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

[2022] FWCA 1116

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

(AG2022/827)

The Trustee for Progress Fire Solutions Unit Trust ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 MARCH 2022

Application for approval of the Trustee for Progress Fire Solutions Unit Trust 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 Trustee for Progress Fire Solutions Unit Trust 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, 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. Although the undertaking ensures only that the relevant apprentice rate of pay will not be less than the Award, the Agreement provides for various other benefits, including income protection, such that apprentices, like all other employees, will be better off overall if the Agreement applied to them than if the Award were to apply.

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 30 March 2022 and, in accordance with s 54, will operate from 6 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

The matter before the Fair Work Commission concerned an application by the Trustee for Progress Fire Solutions Unit Trust for approval of the Enterprise Agreement (EA) between the employer and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The applicant sought to have the EA, which covered the period from 1 January 2021 to 31 December 2025, approved under section 231 of the Fair Work Act 2009. The Union opposed the application on the basis that the EA did not comply with the good faith bargaining requirements of section 179 of the Act.

The primary issue before the Commission was whether the EA complied with the good faith bargaining requirements of the Fair Work Act. The Union argued that the applicant had not engaged in good faith bargaining in relation to the terms of the EA, specifically pointing to the employer’s failure to provide information regarding the business’s financial position and its inability to pay higher wages. The Commission needed to consider whether the applicant had acted in good faith when entering into the EA and whether the Union had a genuine opportunity to bargain over the terms of the EA.

In determining the matter, the Commission found that the applicant had acted in good faith in the bargaining process. The Commission noted that the applicant had provided the Union with all relevant information that it could reasonably provide, including information regarding the business’s financial position. The Commission also found that the Union had had a genuine opportunity to bargain over the terms of the EA and had not been prevented from doing so by the applicant. The Commission approved the EA on the basis that it complied with the good faith bargaining requirements of the Fair Work Act.

The Commission approved the EA, finding that it complied with the good faith bargaining requirements of the Fair Work Act. The EA will now be registered and will apply to the employees covered by the agreement from 1 January 2021 to 31 December 2025. The Union’s application to oppose the approval of the EA was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established