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

[2022] FWCA 56

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

(AG2021/8974)

A.S.I. Electrics Pty. Ltd. ETU Enterprise Agreement 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 JANUARY 2022

Application for approval of the A.S.I. Electrics Pty. Ltd. ETU Enterprise Agreement 2021 - 2025

An application has been made for approval of an enterprise agreement known as the A.S.I. Electrics Pty. Ltd. 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.

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.

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.

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.

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.

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 matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and A.S.I. Electrics Pty. Ltd. The union sought approval of their Enterprise Agreement 2021-2025, which was submitted to the Commission for assessment and determination. The company's contention was that the proposed agreement contained provisions that did not align with the statutory requirements of the Fair Work Act 2009, particularly in relation to minimum entitlements and the fairness of the terms for employees. The union argued that the agreement was fair and met all necessary statutory criteria, including providing for minimum rates of pay, leave entitlements, and conditions that were not less favourable than the applicable awards or safety nets.

The primary legal issues before the Commission were whether the proposed agreement contained any provisions that were less favourable than the relevant awards or safety nets, and whether the agreement was made in good faith and contained the necessary minimum terms and conditions. The Commission was required to scrutinise each clause of the agreement to ensure compliance with the Fair Work Act, which mandates that enterprise agreements must provide for minimum rates of remuneration, and other terms and conditions of employment that are not less favourable than the relevant award or safety net. Furthermore, the Commission needed to assess if the agreement was made in good faith, as per the legislative requirements.

The Commission found that while the proposed agreement contained provisions that were largely consistent with the applicable awards and safety nets, there were certain clauses that required amendment to meet the statutory requirements. The Commission determined that these clauses did not provide for the minimum rates of pay and entitlements as required by law. After considering submissions from both parties, the Commission made orders to modify specific provisions of the agreement to ensure compliance with the Fair Work Act. Consequently, the Commission approved the agreement with the specified amendments, ensuring that it met all necessary legal standards and provided fair terms for employees.

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