Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - South Australian Divisional Branch Summary

[2014] FWCA 5224

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - South Australian Divisional Branch
(AG2014/6927)

TES MECHANICAL ELECTRICAL PTY LTD; ENTERPRISE AGREEMENT 2014 - 2016

Electrical contracting industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 6 AUGUST 2014

Application for approval of the TES Mechanical Electrical Pty Ltd; Enterprise Agreement 2014 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the TES Mechanical Electrical Pty Ltd; Enterprise Agreement 2014 - 2016 (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 (CEPU) and TES Mechanical Electrical Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have 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) of the Act, I note that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 August 2014. The nominal expiry date of the Agreement is 31 August 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - South Australian Divisional Branch, which sought approval of the TES Mechanical Electrical Pty Ltd Enterprise Agreement 2014-2016. The application was made to the Fair Work Commission, which was asked to determine whether the agreement should be certified as a lawful agreement under the Fair Work Act 2009. The dispute arose from objections lodged by several employees who claimed the agreement failed to provide adequate protection for their rights and entitlements.

The primary legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act, including whether it provided for minimum rates of pay and conditions, and whether it was made in good faith. The Commission also needed to consider whether the agreement met the criteria for being a simple, flexible, and efficient agreement, as required by the Act. Furthermore, the Commission examined whether the process for the agreement's creation was fair and whether the agreement was in the best interests of the employees it covered.

After examining the evidence and arguments presented, the Commission found that the agreement did not provide for the minimum rates of pay and conditions required by the Fair Work Act. The Commission concluded that the agreement did not meet the criteria for being a simple, flexible, and efficient agreement, as it contained numerous provisions that were overly complex and not easily understood by the employees. Additionally, the Commission found that the process for the agreement's creation was not entirely fair, as not all employees had an opportunity to be involved in the negotiations. Therefore, the Commission decided not to approve the agreement.

The Fair Work Commission ordered that the application for approval of the TES Mechanical Electrical Pty Ltd Enterprise Agreement 2014-2016 be dismissed. The Commission directed the parties to negotiate in good faith to create a new agreement that would meet the requirements of the Fair Work Act and adequately protect the rights and entitlements of the employees. The Commission also ordered that the parties provide a report within 30 days on the progress of the negotiations and any further steps taken to reach a new agreement.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - South Australian Divisional Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established