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

[2022] FWCA 954

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

(AG2022/628)

Twomorrows Electrical Pty Ltd and ETU Greenfield Enterprise Agreement 2021 – 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 MARCH 2022

Application for approval of the Twomorrows Electrical Pty Ltd and ETU Greenfield 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 Twomorrows Electrical Pty Ltd and ETU Greenfield Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5) of the Act, I am satisfied that the CEPU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it, and that it is in the public interest to approve the 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.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CEPU and that the Agreement covers this organisation.

The Agreement was approved on 18 March 2022 and, in accordance with s 54, will operate from 25 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 matter before the Fair Work Commission involved an application for the approval of the Twomorrows Electrical Pty Ltd and ETU Greenfield Enterprise Agreement 2021 – 2025. The dispute arose from the negotiation process and the proposed terms of the agreement between the employer and the union representing the employees. The Fair Work Commission was tasked with determining whether the agreement should be approved, considering the legal requirements and standards set by the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement met the procedural and substantive requirements for approval under the Fair Work Act. Procedurally, the Commission had to consider if the agreement was made in accordance with the prescribed processes, including whether genuine bargaining had occurred and if the agreement was made without any improper conduct. Substantively, the Commission needed to assess if the agreement provided for terms and conditions of employment that were no less favourable than the applicable award or safety net. Additionally, the Commission had to determine if the agreement included all the prescribed minimum terms and conditions as required by the Act.

The Fair Work Commission found that the application for approval was valid and that the agreement was made in accordance with the requirements of the Fair Work Act. The Commission concluded that genuine bargaining had taken place and that the agreement did not include any terms that were less favourable than the applicable award or safety net. Furthermore, the agreement contained all the prescribed minimum terms and conditions as mandated by the Act. Therefore, the Commission approved the agreement, recognising its compliance with the legal standards and the interests of the parties involved.

In light of the findings, the Fair Work Commission approved the Twomorrows Electrical Pty Ltd and ETU Greenfield Enterprise Agreement 2021 – 2025, effective from the date of the decision. This approval ensures that the terms and conditions of employment for the employees covered by the agreement are legally binding and enforceable, providing certainty and protection for both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established