Complex Electrical (CE Group) Pty Ltd T/A Complex Electrical (CEA Group)

[2022] FWCA 3129

[2022] FWCA 3129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Complex Electrical (CE Group) Pty Ltd T/A Complex Electrical (CEA Group)

(AG2022/3515)

Complex Electrical (CE Group) Pty Ltd & ETU NSW Construction Enterprise Agreement 2022

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 9 SEPTEMBER 2022

Application for approval of the Complex Electrical (CE Group) Pty Ltd & ETU NSW Construction Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Complex Electrical (CE Group) Pty Ltd & ETU NSW Construction Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Complex Electrical (CE Group) Pty Ltd T/A Complex Electrical (CE Group) (Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) issued by the Employer on 21 July 2022 was not in the form prescribed by the Fair Work Regulations 2009 (Cth). Rather, the NERR included the Employer’s logo and contact details. Having regard to the material before the Commission I am satisfied that:

(a)   the error identified at [2] constitutes a minor procedural or technical error for the purposes of s 188(2)(a); and

(b)   the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.[1]

1. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings, 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.

1. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Commission raised with the Employer that clauses 38(b) and 42(c) of the Agreement may be inconsistent with National Employment Standards (NES). Clause 38(b) provides that an Employee agrees to reimburse the Employer for overpayments which may be deducted from money payable on termination. Clause 42(c) provides that an Employee authorises the Employer to deduct from any wages or entitlements payable or owing to the Employees any personal costs incurred by the Employee on a company mobile telephone. However, noting clause 9(b) 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.

1. 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.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 16 September 2022. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

Annexure A

[1] Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318

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