Concept Engineering (Aust) Pty Ltd Summary

[2022] FWCA 3134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Concept Engineering (Aust) Pty Ltd

(AG2022/3598)

Concept Engineering and ETU Victorian Rail Infrastructure Enterprise Agreement 2021 – 2025

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 9 SEPTEMBER 2022

Application for approval of the Concept Engineering and ETU Victorian Rail Infrastructure Enterprise Agreement 2021– 2025

An application has been made for approval of an enterprise agreement known as the Concept Engineering and ETU Victorian Rail Infrastructure Enterprise Agreement 2021– 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Concept Engineering (Aust) Pty Ltd. The Agreement is a single enterprise agreement.

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.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the provided undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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.

The Agreement was approved on 9 September 2022 and, in accordance with s.54, will operate from 16 September 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

In this matter, the parties involved were Concept Engineering (Aust) Pty Ltd and the Electrical Trades Union (ETU) Victoria, who brought forward an application for the approval of the Concept Engineering and ETU Victorian Rail Infrastructure Enterprise Agreement 2021–2025. The application was heard and determined by the Fair Work Commission, which has jurisdiction over enterprise agreements under the Fair Work Act 2009. The primary objective of this application was to secure the Fair Work Commission's approval for the proposed enterprise agreement, ensuring that it met the legislative requirements and provided fair terms and conditions for the employees involved.

The central legal issues that the Fair Work Commission was tasked with resolving revolved around whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act. This involved assessing whether the agreement had been genuinely negotiated, was free from any coercion, and whether it met the criteria for being considered “better off overall” for the employees. Additionally, the Commission had to determine if the agreement provided appropriate protections and benefits for the employees, and whether it adhered to the procedural requirements necessary for its approval.

Upon examining the evidence and submissions presented by both parties, the Fair Work Commission found that the proposed enterprise agreement satisfied all the necessary legal requirements. The Commission determined that the agreement had indeed been genuinely negotiated between the employer and the union, and that it was free from any elements of coercion. Furthermore, the Commission was satisfied that the agreement provided fair and reasonable terms and conditions for the employees, and that it offered adequate protections and benefits. Consequently, the Fair Work Commission approved the Concept Engineering and ETU Victorian Rail Infrastructure Enterprise Agreement 2021–2025, recognising it as meeting the standards set forth in the Fair Work Act.

Concept Engineering (Aust) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established