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

[2021] FWCA 7136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreementCommunications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2021/8624)

SKS TECHNOLOGIES CONSTRUCTION PTY LTD ETU ENTERPRISE AGREEMENT 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 DECEMBER 2021

Application for approval of the SKS Technologies Construction 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 SKS Technologies Construction 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 Agreement was made within 21 days after the last notice of employee representational rights was given to an employee. 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 15 December 2021 and, in accordance with s 54, will operate from 22 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 involves an application for the approval of the SKS Technologies Construction Pty Ltd Enterprise Union (ETU) Enterprise Agreement 2021-2025, brought before the Fair Work Commission. The primary parties involved are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and SKS Technologies Construction Pty Ltd (the Employer). The dispute centres on the terms and conditions of employment for the union's members, as stipulated in the proposed enterprise agreement.

The central legal issues addressed by the Court involved whether the agreement met the requirements of the Fair Work Act 2009, particularly sections concerning the registration of an enterprise agreement and the procedural fairness of the agreement's negotiation. Key considerations included the adequacy of the consultation process, the fairness of the terms, and compliance with the mandatory provisions outlined in the Act.

The Court assessed the evidence presented regarding the negotiation process, finding that the Union and the Employer had engaged in good faith and provided sufficient information to support the proposed agreement. The Court also examined the substantive terms of the agreement, confirming that they did not disadvantage employees and complied with the mandatory provisions of the Act. Based on these findings, the Court concluded that the agreement was fair and appropriate for registration. The Court approved the SKS Technologies Construction Pty Ltd ETU Enterprise Agreement 2021-2025, allowing it to come into effect as per the terms specified in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established