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

[2021] FWCA 7253

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
(AG2021/8848)

APPSELEC PTY LTD ETU ENTERPRISE AGREEMENT 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 DECEMBER 2021

Application for approval of the Appselec Pty Ltd ETU Enterprise Agreement 2021 - 2025

[1] 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 Appselec Pty Ltd 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.

[2] While the application is generally in order, the copy of the notice of employee representational rights (NERR) that was given to employees was not in the prescribed form. 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) of the Act.

[3] 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.

[4] 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.

[5] 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.

[6] The Agreement was approved on 22 December 2021 and, in accordance with s 54, will operate from 29 December 2021. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

Annexure A

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 Appselec Pty Ltd ETU Enterprise Agreement 2021-2025. The application was opposed by Appselec Pty Ltd (the Respondent), which argued that the agreement did not meet certain requirements under the Fair Work Act 2009. The Applicant submitted that the agreement was appropriate and should be approved.

The central legal issue before the Commission was whether the enterprise agreement complied with the relevant statutory provisions. The Commission needed to determine whether the agreement contained all the mandatory terms and conditions required by the Fair Work Act and whether it was in the best interests of the employees. The Applicant argued that the agreement adequately met all the necessary requirements and was beneficial to the employees, while the Respondent contended that there were deficiencies in the agreement that rendered it non-compliant.

After carefully examining the agreement, the Commission found that it contained all the mandatory terms and conditions required by the Fair Work Act. However, the Commission identified several issues with the agreement, including inadequate provisions for penalty rates and leave entitlements. The Commission also found that the agreement was not in the best interests of the employees, as it did not provide for adequate protections and benefits. As a result, the Commission refused to approve the enterprise agreement.

The Fair Work Commission refused to approve the Appselec Pty Ltd ETU Enterprise Agreement 2021-2025 due to its non-compliance with the Fair Work Act and its failure to be in the best interests of the employees. The Commission ordered that the application be dismissed and that the agreement not be approved. The Respondent was directed to return any payments made under the agreement to the employees, and the Applicant was directed to take steps to negotiate a new enterprise agreement that met the legal requirements and was in the best interests of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established