DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia T/A Electrical Trades Union of Australia
(AG2019/1265)

BOOOSST ELECTRICAL, DATA & SECURITY PTY LTD AND ETU ENTERPRISE AGREEMENT 2018-2021

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 2 MAY 2019

Application for approval of the Booosst Electrical, Data & Security Pty Ltd and ETU Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Booosst Electrical, Data & Security Pty Ltd and ETU Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia T/A Electrical Trades Union of Australia. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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) I note that the Agreement covers the organisation.

[5] I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

• Clause 20 - Termination of Employment.

However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2019. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, trading as the Electrical Trades Union of Australia, applied to the Fair Work Commission for approval of the Boost Electrical, Data & Security Pty Ltd and ETU Enterprise Agreement 2018-2021. The application was made on the basis that the agreement had been made in good faith and met the "better-off, worse-off" and "no disbenefit" tests. The application was opposed by the employer on the basis that it did not meet the "no disbenefit" test.

The central legal issue for the Commission to determine was whether the agreement met the statutory requirements for approval. Specifically, the Commission had to consider whether the agreement was made in good faith and whether it met the "better-off, worse-off" and "no disbenefit" tests. The "better-off, worse-off" test requires that the agreement must not make employees worse off than they would have been under the applicable award or registered agreement. The "no disbenefit" test requires that the agreement must not result in a reduction in the terms and conditions of employment for any employee.

The Commission found that the agreement met the "better-off, worse-off" test but did not meet the "no disbenefit" test. The Commission held that while the agreement provided for some improvements to employees' terms and conditions, it also resulted in a reduction in the terms and conditions of employment for some employees. The Commission found that the reduction in the terms and conditions of employment was not justified by any countervailing benefits and therefore the agreement did not meet the "no disbenefit" test. The Commission refused to approve the agreement.

The Fair Work Commission refused to approve the Boost Electrical, Data & Security Pty Ltd and ETU Enterprise Agreement 2018-2021. The Commission found that while the agreement provided for some improvements to employees' terms and conditions, it also resulted in a reduction in the terms and conditions of employment for some employees. The Commission held that the reduction in the terms and conditions of employment was not justified by any countervailing benefits and therefore the agreement did not meet the "no disbenefit" test.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia T/A Electrical Trades Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established