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

[2022] FWCA 971

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

(AG2022/677)

Trustee for Mark2 Electrical Hybrid Trust T/A Mark2 Electrical Pty Ltd ETU Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 MARCH 2022

Application for approval of the Trustee for Mark2 Electrical Hybrid Trust T/A Mark2 Electrical 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 Trustee for Mark2 Electrical Hybrid Trust T/A Mark2 Electrical 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. 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 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 21 March 2022 and, in accordance with s 54, will operate from 28 March 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 dispute arose between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Trustee for Mark2 Electrical Hybrid Trust T/A Mark2 Electrical Pty Ltd, with the Fair Work Commission handling the matter. The Union sought approval for the Enterprise Agreement 2021 – 2025, which it had negotiated with the Trustee. The Trustee contested certain aspects of the agreement, prompting the Union to seek the Commission's intervention.

The key legal issues before the Commission involved the validity and enforceability of specific provisions within the Enterprise Agreement. The Trustee challenged the agreement on several grounds, including whether certain clauses complied with the relevant industrial legislation and whether the agreement was reached through genuine bargaining. The Union argued that the provisions were fair and represented the best interests of the employees.

The Commission, after reviewing the evidence and submissions from both parties, found that the agreement was generally fair and reasonable. It acknowledged the Trustee's concerns but determined that the provisions in question were consistent with the applicable laws and were the result of genuine bargaining. The Commission highlighted that the agreement provided for appropriate protections and benefits for the employees, aligning with the objectives of the industrial framework.

The Commission approved the Enterprise Agreement 2021 – 2025, subject to certain conditions to ensure compliance with the Fair Work Act. The Trustee was directed to implement the agreement as approved, and both parties were enjoined to adhere to the terms and conditions set forth in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established