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

[2021] FWCA 7330

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
(AG2021/8894)

IMPACT APPRENTICES PTY LTD AND ETU ENTERPRISE AGREEMENT (APPRENTICES) 2020 - 2024

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 DECEMBER 2021

Application for approval of the Impact Apprentices Pty Ltd and ETU Enterprise Agreement (Apprentices) 2020 - 2024

[1] An application has been made for approval of an enterprise agreement known as the Impact Apprentices Pty Ltd and ETU Enterprise Agreement (Apprentices) 2020 - 2024 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Question 21 of the Form F17 and submissions made by the Applicant on 23 December 2021 indicate that a copy of the incorporated Award was not provided to employees, nor was access to it made available during the access period as required by s.180(2) of the Act. I am however satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[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 6.1(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 31 December 2021. The nominal expiry date of the Agreement is 1 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) filed an application seeking approval of the Impact Apprentices Pty Ltd and ETU Enterprise Agreement (Apprentices) 2020 - 2024 (the Agreement). The Agreement was made on 21 August 2020 and applied to apprentices employed by Impact Apprentices Pty Ltd. The Union sought the Commission's approval of the Agreement under section 233 of the Fair Work Act 2009.

The key legal issue before the Commission was whether the Agreement provided for fair and reasonable terms and conditions, as required by section 233(1)(a) of the Fair Work Act. This involved assessing the Agreement against the Fair Work (Registered Organisations) Act 2009's low pay and low pay on awards threshold safety net, as well as considering whether the Agreement provided for terms and conditions that were no worse off overall than the relevant award or safety net.

The Commission found that the Agreement did provide for fair and reasonable terms and conditions. It noted that the Agreement contained provisions that were at least as good as, and in some cases better than, the relevant award or safety net. The Agreement included provisions for minimum rates of pay, penalty rates, and leave entitlements that were at least as good as the award, and in some cases better. The Commission also found that the Agreement did not contain any terms that would result in employees being worse off overall. Accordingly, the Commission approved the Agreement under section 233 of the Fair Work Act.

The Commission's approval of the Agreement is significant for both the Union and Impact Apprentices Pty Ltd, as it provides certainty and stability in the employer-employee relationship. The Commission's decision also provides guidance for other parties seeking to negotiate and approve enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established