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

[2021] FWCA 7258

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
(AG2021/8893)

STOWE AUSTRALIA PTY LIMITED (VICTORIAN DIVISION) AND ETU ENTERPRISE AGREEMENT 2021-2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 DECEMBER 2021

Application for approval of the Stowe Australia Pty Limited (Victorian Division) and 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 Stowe Australia Pty Limited (Victorian Division) and 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

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, on behalf of its members, and Stowe Australia Pty Limited. The matter was before the Fair Work Commission, which was asked to approve the Stowe Australia Pty Limited (Victorian Division) and ETU Enterprise Agreement 2021-2025. The union sought approval for the enterprise agreement, which was to cover its members employed by Stowe Australia in Victoria. The legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it met the requirements for approval under the Act.

The Commission considered whether the agreement provided for the proper protection of employees' interests, including pay, conditions, and dispute resolution mechanisms. It also had to be satisfied that the agreement had been made in good faith and without coercion. The Commission examined the provisions of the agreement, the process by which it was negotiated, and the views of the parties involved. The union argued that the agreement was fair and reasonable and provided for adequate protections for its members. Stowe Australia Pty Limited supported the application, asserting that the agreement was the result of genuine negotiations and reflected the needs of both parties.

After reviewing the evidence and submissions, the Commission found that the agreement was fair and reasonable and met the requirements for approval under the Fair Work Act. The Commission was satisfied that the agreement provided for proper protection of employees' interests, including adequate pay and conditions, and included effective dispute resolution mechanisms. It also found that the agreement was made in good faith and without coercion. The Commission approved the Stowe Australia Pty Limited (Victorian Division) and ETU Enterprise Agreement 2021-2025, effective from the date of the decision. The agreement now provides the basis for the terms and conditions of employment for the union's members at Stowe Australia Pty Limited in Victoria for the period 2021-2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established