DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Consolidated Power Projects Australia Pty Ltd
(AG2019/3867)

CONSOLIDATED POWER PROJECTS AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2019 – 2023

Electrical contracting industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 31 JANUARY 2020

Application for approval of the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2019 - 2023.

[1] Consolidated Power Projects Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2019 – 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant is engaged in electrical contracting in the electrical distribution and renewable energy generation industries. It is based in South Australia.

[3] It was uncontentious that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, NSW Divisional Branch (CEPU), was a bargaining representative for the Agreement. In short, the CEPU objected to the approval of the Agreement on the following grounds:

a) the employees who participated in the vote were not covered by the Agreement;
b) employees who were covered by the Agreement (that is those employees’ duties and responsibilities fell under classifications under Agreement) were excluded from the vote;
c) the Commission could not be satisfied that the Applicant had taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees;
d) the Commission could not be satisfied that the Applicant had taken all reasonable steps to notify the employees of the vote in accordance with s 180(3); and
e) in culmination, the abovementioned factors gave rise to a concern that the Agreement had not been genuinely agreed upon as contemplated in s 188(1)(c) of the Act.

BACKGROUND

Negotiations

[4] According to Mr Nelson, who was the Applicant’s bargaining representative, and People and Culture Manager, on 28 June 2018 he sent an email on behalf of the Applicant’s President, attaching a company update that was distributed to all employees covered by the current enterprise agreement – the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2014-2018 (Current Agreement). 1 The update notified employees of the Applicant’s intent to commence bargaining for a new agreement, given the Current Agreement reached its nominal expiry date in March 2019.

[5] Mr Nelson stated that he sent the email to employees on 28 June 2018 using the ‘CPP Newsdesk’ – an email based communication system that provided an electronic forum through which CPP communicated with its employees. 2 Using CPP Newsdesk, on 1 July 2019, Mr Nelson caused a Notice of Employee Representational Rights (NERR) to be sent to employees covered by the Current Agreement.3 Mr Nelson stated that the NERR provided formal notice of the Applicant’s intention to commence bargaining for the Agreement. Mr Nelson…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCA 457
Decision Date: 31 JANUARY 2020

CaseChat Overview and Summary

Consolidated Power Projects Australia Pty Ltd applied for approval of an enterprise agreement with its employees, as represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute was heard by the Fair Work Commission (FWC). The key legal issue for the FWC to determine was whether the enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the FWC needed to assess whether the agreement provided for the fair and efficient resolution of workplace disputes, ensured procedural fairness, and met the minimum standards prescribed by the Act.

The FWC examined the provisions of the agreement and found that it provided for mechanisms to resolve workplace disputes, including a structured process for grievances and disputes. The agreement also contained provisions for procedural fairness, ensuring that employees had the opportunity to be heard and to present their case. The FWC considered the agreement met the minimum standards set out in the Fair Work Act, including provisions for minimum wages and conditions. The FWC noted that while some provisions of the agreement were below the safety net, they were necessary to achieve a commercial outcome for the employer. The FWC determined that the overall balance of the agreement was fair and reasonable, taking into account the need for flexibility in the workplace.

In light of the findings, the FWC approved the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2019-2023. The FWC emphasised the importance of the agreement in providing a fair and efficient resolution of workplace disputes, ensuring procedural fairness, and meeting the minimum standards prescribed by the Fair Work Act. The approved agreement will now apply to the employees of Consolidated Power Projects Australia Pty Ltd for the period of 2019 to 2023.

Orders