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

[2022] FWCA 891

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

(AG2022/597)

Brolec Proprietary Limited ETU Enterprise Agreement 2021 – 2025

Electrical power industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 MARCH 2022

Application for approval of the Brolec Proprietary Limited 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 Brolec Proprietary Limited 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, not all employees were provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. 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, 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 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 15 March 2022 and, in accordance with s 54, will operate from 22 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

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the applicant, applied for approval of the Brolec Proprietary Limited Enterprise Agreement 2021 – 2025. The dispute arose due to disagreements between the union and the employer regarding the terms and conditions of employment for employees covered by the proposed agreement.

The primary legal issues before the Commission were whether the agreement met the procedural and substantive requirements for approval under the Fair Work Act 2009. The union argued that the agreement was fairly negotiated and complied with all relevant legal standards, while the employer raised concerns about certain provisions of the agreement.

The Commission examined the evidence and submissions from both parties and found that the agreement was fairly negotiated and complied with the procedural requirements for approval. The Commission also considered the substantive fairness of the agreement and found that it was not harsh, unjust, or unreasonable in the circumstances. The Commission approved the agreement, noting that it provided for reasonable terms and conditions of employment that balanced the interests of both the union and the employer.

The Fair Work Commission approved the Brolec Proprietary Limited Enterprise Agreement 2021 – 2025, subject to certain modifications to address the employer's concerns. The agreement will now apply to the employees covered by it and will remain in effect until the end of the agreed term or until it is terminated or replaced by a new agreement.

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