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

[2022] FWCA 1019

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

(AG2022/747)

MTL Automation Pty Ltd ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 23 MARCH 2022

Application for approval of the MTL Automation 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 MTL Automation 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 Agreement was made within 21 days after the last notice of employee representational rights (NERR) was given. 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 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 23 March 2022 and, in accordance with s 54, will operate from 30 March 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 matter before the court involved an application for the approval of an enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") and MTL Automation Pty Ltd (the "Employer"). The dispute arose from the Union's application to the Fair Work Commission for the approval of the MTL Automation Pty Ltd ETU Enterprise Agreement 2021 – 2025. The Union sought the court's approval of the agreement, which had been negotiated with the Employer. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the court needed to determine if the agreement met the "better off overall test" (BOOT) as required by section 233 of the Act. This test ensures that employees covered by the agreement are not worse off than they would be under the applicable award or safety net. The court also had to consider whether the agreement contained all the mandatory terms prescribed by section 230 of the Act.

The court found that the agreement complied with all the necessary legal requirements. The Union demonstrated that the agreement provided employees with benefits that were at least as good as those provided by the applicable award, thus meeting the BOOT. Additionally, the court confirmed that the agreement included all the mandatory terms prescribed by the Act. As a result, the court approved the MTL Automation Pty Ltd ETU Enterprise Agreement 2021 – 2025.

Consequently, the court granted the Union's application for the approval of the enterprise agreement. This decision allowed the agreement to come into effect, providing a framework for the terms and conditions of employment for the employees of MTL Automation Pty Ltd as negotiated between the Union and the Employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established