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

[2022] FWCA 57

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
(AG2021/9092)

O&M PTY LTD AND ETU ENTERPRISE AGREEMENT 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 JANUARY 2022

Application for approval of the O&M Pty Ltd and ETU Enterprise Agreement 2021 - 2025

[1] An application has been made for approval of an enterprise agreement known as the O&M Pty Ltd and ETU Enterprise Agreement 2021 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4.1(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 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 case involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to have the O&M Pty Ltd and ETU Enterprise Agreement 2021-2025 approved under the Fair Work Act 2009. The union sought approval of the agreement which aimed to establish terms and conditions of employment for employees of O&M Pty Ltd and ETU. The application was heard by the Fair Work Commission.

The legal issues before the Commission included whether the agreement complied with the formal requirements of the Fair Work Act, and whether the agreement was in the best interests of the employees. Specifically, the Commission had to consider whether the agreement contained the mandated minimum terms and conditions, and whether it was free from any invalid or unenforceable provisions. Additionally, the union had to demonstrate that the agreement had been genuinely negotiated and that employees had been adequately informed about the application.

The Fair Work Commission found that the agreement was validly made, contained all the mandated minimum terms and conditions, and was free from any invalid or unenforceable provisions. The Commission was satisfied that the agreement had been genuinely negotiated and that employees had been adequately informed. The Commission concluded that the agreement was in the best interests of the employees, given the increased protections and benefits it provided. The application was approved, and the agreement was registered.

No further orders were made by the Commission. The union's application was successful, and the agreement was approved and registered under the Fair Work Act.

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