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

[2022] FWCA 732

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

(AG2022/369)

Ops Power Pty Ltd & ETU Powerline Enterprise Agreement 2020-2023

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 MARCH 2022

Application for approval of the Ops Power Pty Ltd & ETU Powerline Enterprise Agreement 2020-2023

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 Ops Power Pty Ltd & ETU Powerline Enterprise Agreement 2020-2023 (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 employees were not provided with the voting instructions seven clear days before the vote. 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 were 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).

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 and 188 as are relevant to this application for approval has been met.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 1 March 2022 and, in accordance with s 54, will operate from 8 March 2022. The nominal expiry date of the Agreement is 31 August 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the employer, Ops Power Pty Ltd. The union sought approval for the Ops Power Pty Ltd & ETU Powerline Enterprise Agreement 2020-2023, which sought to regulate the employment conditions of certain workers. The dispute centred on the fairness and appropriateness of the terms and conditions outlined in the proposed agreement, as well as its compliance with relevant legislative requirements.

The primary legal issues before the court were whether the terms of the proposed enterprise agreement were fair and appropriate, and if they complied with the provisions of the Fair Work Act 2009. This involved assessing whether the agreement met the "better off overall test," which requires that the agreement must provide employees with a minimum of the national safety net entitlements and be at least as good as the applicable award or registered agreement. The court also had to consider whether the agreement had been made in accordance with the requirements of the Fair Work Act, including whether the union and employer had engaged in genuine bargaining.

In determining the fairness and appropriateness of the agreement, the court examined the evidence provided by both parties, including submissions on the economic and non-economic aspects of the proposed agreement. The court considered the impact of the agreement on the employees' terms and conditions of employment, including wages, hours of work, and other entitlements. The court also assessed whether the agreement provided for a fair and reasonable process for resolving disputes between the parties. Ultimately, the court found that the agreement met the requirements of the Fair Work Act and was fair and appropriate for the employees covered by the agreement.

As a result of the court's determination, the Ops Power Pty Ltd & ETU Powerline Enterprise Agreement 2020-2023 was approved, and the terms and conditions outlined in the agreement became binding on the employees and employer. The union and employer were also required to take steps to ensure that the agreement was properly communicated to the employees and that any necessary certifications were obtained. The approval of the enterprise agreement provided certainty and stability to the employment relationship between the parties and ensured that the employees were provided with fair and reasonable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established