Construction, Forestry, Mining and Energy Union

[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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval for the Comselec Group Pty Ltd Enterprise Agreement 2014-2018. The dispute centred on the application for the agreement to be certified as a single interest employer agreement, which would allow it to be registered and enforced without the need for individual employees to opt-in. Comselec Group Pty Ltd opposed the application, contending that the union did not have the requisite support of a majority of the employees covered by the agreement.

The central legal issue before the Commission was whether the union had demonstrated that it had the support of a majority of employees as required by section 172 of the Fair Work Act 2009. The Commission had to consider the evidence presented regarding the number of employees who had signed authorisation forms and the process through which those forms were collected. Additionally, the Commission needed to assess whether the agreement complied with the good faith bargaining requirements and other provisions of the Act.

In reaching its decision, the Commission examined the evidence and found that the union had failed to prove that it had the requisite majority support of employees. The Commission was not satisfied with the methodology used to collect the authorisation forms and concluded that the process did not meet the standards required by the Act. Furthermore, the Commission found that the agreement did not adequately address certain aspects of good faith bargaining and compliance with the Act. As a result, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the Comselec Group Pty Ltd Enterprise Agreement 2014-2018 be dismissed. The Commission's decision highlighted the importance of robust evidence and proper process in demonstrating majority employee support for an enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established