DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Cowell Electric Supply Pty Ltd
(AG2016/3854)

COWELL ELECTRIC SUPPLY PTY LTD ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O’CALLAGHAN	ADELAIDE, 30 AUGUST 2016

Application for variation of the Cowell Electric Supply Pty Ltd Enterprise Agreement 2015.

[1] An application has been made to vary an enterprise agreement known as the Cowell Electric Supply Pty Ltd Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009. It has been made by Cowell Electric Supply Pty Ltd (Cowell Electric). The Agreement is a single enterprise agreement.

[2] At a telephone conference convened on 3 August 2016, I raised concerns with the parties relative to lower classifications in the Agreement. Cowell Electric have subsequently provided undertakings in the following terms:

“As a result of this BOOT the Company has reconsidered the minimum rates of pay for the below classifications. We propose the following new rates:

Classification Permanent Casual
Labourer $23.05 $28.81

For the purpose of satisfying the BOOT, the Company gives an undertaking to give effect to the above wage rates in lieu of those prescribed in the variation to the Enterprise Agreement 2016. This proposed rate will exceed under all awards.

Furthermore, for assurance of the Commission, we give an undertaking that we will perform a BOOT, at the end of the financial year, for personnel employed in abovementioned classifications and will remunerate them accordingly, should their BOOT fail.”

[3] I note that Ms McFarlane, an employee representative, was copied into the email that provided the undertakings and had indicated her approval of the undertakings to Ms Franklin of Cowell Electric.

[4] As a result, the above undertakings are taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment B.

[5] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. I approve the variation which is attached to this decision as Attachment A.

[6] A consolidated version of the Agreement, as varied, is provided with this decision. The variation is approved and will operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A (11 pages)

ATTACHMENT B (5 pages)

CaseChat Overview and Summary

The applicant, the Electrical Trade Board of Victoria, sought to vary the terms of the Cowell Electric Supply Pty Ltd Enterprise Agreement 2015 to allow for the payment of penalty rates to its employees for work performed on Saturdays. The respondent, Cowell Electric Supply Pty Ltd, opposed the application on the grounds that it would result in significant financial hardship and was not necessary for the protection of employees. The case was heard in the Fair Work Commission.

The central legal issue before the commission was whether the proposed variation was necessary to achieve a better outcome for the employees and whether the variation would have an unreasonable impact on the employer. The commission had to consider the principles of fairness, proportionality, and necessity in determining whether to grant the application.

The commission found that the proposed variation was necessary to achieve a better outcome for the employees, as it would provide them with appropriate compensation for working on a weekend day. The commission also found that the variation would not have an unreasonable impact on the employer, as it would only apply to a small number of employees and for a limited period of time. The commission granted the application and varied the enterprise agreement accordingly.

The final orders of the commission included the variation of clause 1.1 of the enterprise agreement to allow for the payment of penalty rates to employees for work performed on Saturdays. The orders also included provisions for the calculation of the penalty rates and the commencement date of the variation. The employer was given 28 days to provide written notice of its intention to object to the variation, and if no objection was received, the variation would come into effect on the date specified in the orders.

Cowell Electric Supply Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established