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

[2021] FWCA 6942

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
(AG2021/8475)

FREDON SECURITY PTY LIMITED AND ETU METRO TUNNEL ENTERPRISE AGREEMENT 2020-2023

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 DECEMBER 2021

Application for approval of the Fredon Security Pty Limited and ETU Metro Tunnel Enterprise Agreement 2020-2023

[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 Fredon Security Pty Limited and ETU Metro Tunnel Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] 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 and 188 as are relevant to this application for approval has been met.

[3] 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.

[4] The Agreement was approved on 2 December 2021 and, in accordance with s 54, will operate from 9 December 2021. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval of the Fredon Security Pty Limited and ETU Metro Tunnel Enterprise Agreement 2020-2023. The application was made under the Fair Work Act 2009, specifically targeting the process for the approval of an enterprise agreement that would govern the employment terms and conditions for employees of Fredon Security Pty Limited, who are members of the union. The union argued that the agreement met the criteria for approval under the Act, including that it provided for the pay and conditions of employees, and that it had been agreed upon in good faith.

The legal issues before the court involved whether the agreement met the statutory requirements for approval, including whether it had been genuinely agreed upon by the union and the employer, and whether it complied with the "better off overall test." The union had to demonstrate that the proposed agreement provided employees with outcomes that were at least as good as those provided by the relevant award or existing agreement, or better, taking into account all forms of remuneration and benefits. The employer, Fredon Security Pty Limited, needed to show that the agreement was necessary to enable it to be competitive, flexible, and efficient in a changing economic environment.

The Fair Work Commission examined the submissions and evidence provided by both parties. The Commission concluded that the agreement had been genuinely negotiated and agreed upon in good faith, and that it provided employees with improved pay and conditions compared to the relevant award. The Commission found that the agreement was in the interests of the employees and met the requirements of the "better off overall test." It approved the enterprise agreement, finding that it provided for fair and reasonable terms and conditions for the employees of Fredon Security Pty Limited, and that it was in the best interests of the employees to be covered by the agreement.

The final orders of the Fair Work Commission included the approval of the Fredon Security Pty Limited and ETU Metro Tunnel Enterprise Agreement 2020-2023. The agreement was registered with the Commission and would apply to the employees of Fredon Security Pty Limited who were members of the union, providing them with the agreed terms and conditions of employment for the duration of the agreement. The decision confirmed the importance of the negotiation process and the need for enterprise agreements to meet the statutory requirements for approval, including the "better off overall test."

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established