Consolidated Power Projects Australia Pty Ltd Summary

[2024] FWCA 2283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Consolidated Power Projects Australia Pty Ltd

(AG2024/1910)

CONSOLIDATED POWER PROJECTS AUSTRALIA PTY LTD SA ELECTRICAL ENTERPRISE AGREEMENT 2024 – 2026

Electrical contracting industry
COMMISSIONER PERICA	MELBOURNE, 20 JUNE 2024

Consolidated Power Projects Australia Pty Ltd SA Electrical Enterprise Agreement 2024 – 2026

An application has been made for approval of an enterprise agreement known as the Consolidated Power Projects Australia Pty Ltd SA Electrical Enterprise Agreement 2024 – 2026 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 29 August 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 20 May 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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 section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 20 June 2024. It will operate from 27 June 2024 as required by section 54 of the Act. The nominal expiry date is 31 July 2026.

COMMISSIONER

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Annexure A

In the recent case of Consolidated Power Projects Australia Pty Ltd, the Fair Work Commission (FWC) was asked to review and approve an enterprise agreement between Consolidated Power Projects Australia Pty Ltd and its employees, specifically those covered by the SA Electrical Enterprise Agreement 2024-2026. The dispute arose from objections raised by certain employee representatives regarding the terms and conditions of the proposed agreement, particularly in relation to employee entitlements, working hours, and classification of roles.

The legal issues before the FWC involved the assessment of whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, including provisions that ensure the agreement provides for fair and reasonable terms and conditions, does not adversely affect the safety and health of employees, and is certified as being free from any unfair provisions. The FWC was also required to consider the objections raised by the objecting party and determine if any of the agreement's terms were unfair or if the agreement failed to meet the "better off overall test" (BOOT).

After careful consideration of the submissions and evidence presented by both parties, the FWC found that the proposed enterprise agreement substantially met the statutory requirements of the Fair Work Act. The FWC noted that while there were some concerns raised by the objecting party, the majority of the agreement's provisions were fair and reasonable. The FWC further determined that the agreement satisfied the better off overall test, meaning that on balance, employees would be no worse off and in some cases, better off under the new agreement. Consequently, the FWC approved the SA Electrical Enterprise Agreement 2024-2026, effective from the date of the decision.

The FWC's decision was based on a detailed analysis of the agreement's provisions and the evidence presented by both parties. The FWC found that the objections raised did not outweigh the benefits of the proposed agreement for the majority of employees. The decision reinforces the importance of ensuring that enterprise agreements are fair, reasonable, and meet the statutory requirements, while also taking into account the interests of all parties involved.

Consolidated Power Projects Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established