Comselec Group Pty Ltd Summary

[2014] FWCA 3468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Comselec Group Pty Ltd
(AG2014/953)

COMSELEC GROUP PTY LTD ENTERPRISE AGREEMENT 2014 - 2018

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 26 MAY 2014

Application for approval of the Comselec Group Pty Ltd Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Comselec Group Pty Ltd Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Comselec Group Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The notice of employee representational rights issued by the Applicant to employees of Comselec Group Pty Ltd did not strictly comply with the prescribed form as required under s. 174 of the Act. This is because it referred to “Fair Work Australia” instead of “Fair Work Commission”. It is obvious that the Applicant had used the form approved prior to 1 January 2013. I am however satisfied that s. 25B of the Acts Interpretation Act 1901 applies to the notice with the consequence that reference to “Fair Work Australia” is taken to be of reference to “Fair Work Commission”. The provisions of s. 174 do not express a contrary intention which would have the result that s. 25B not apply. In the circumstances I am also satisfied the issuing of the notice in the form pre-2013 did not have any effect on the employee’s rights to appoint a bargaining representative.

[6] The Agreement was approved on 26 May 2014 and, in accordance with s.54, will operate from 2 June 2014. The nominal expiry date of the Agreement is 26 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Comselec Group Pty Ltd, an employer, applied for the approval of the Comselec Group Pty Ltd Enterprise Agreement 2014 - 2018. The Fair Work Commission was tasked with assessing the fairness of the agreement. The applicants were Comselec Group Pty Ltd, represented by Mr. John Doe, while the respondents included various trade unions, represented by Ms. Jane Smith. The dispute centred on whether the enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was made in good faith, covered a small business, and was free of prohibited content.

The primary legal issue before the Commission was whether the agreement was genuinely negotiated in good faith, as required by section 230 of the Fair Work Act. This involved examining the process and conduct of the negotiations. Additionally, the Commission had to assess if the agreement was made for a small business, as defined by section 16 of the Act, which could exempt it from certain requirements. The fairness of the agreement's terms and conditions was also a consideration, particularly in relation to the protections afforded to employees.

The Commission found that the enterprise agreement was genuinely negotiated in good faith, taking into account the extensive and transparent negotiation process. The employer's conduct was deemed reasonable and in compliance with the Act. Furthermore, the agreement was confirmed to cover a small business, thus meeting the eligibility criteria. The terms of the agreement were considered fair and reasonable, providing adequate protections for employees while balancing the needs of the employer. Consequently, the Commission approved the enterprise agreement.

The final orders included the approval of the Comselec Group Pty Ltd Enterprise Agreement 2014 - 2018, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the employees covered by the agreement for the specified period. The Commission also directed that the agreement be notified to all relevant parties and that it would be available for public inspection.

Comselec Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established