DECISION

Fair Work Act 2009
s.210—Enterprise agreement

CVSG Electrical Construction Pty Ltd
(AG2020/918)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
COMMISSIONER JOHNS

MELBOURNE, 2 APRIL 2020

Application for variation of the CVSG Electrical Construction Enterprise Agreement - 2017-2021.

Introduction

[1] On 31 March 2020 CVSG Electrical Construction Pty Ltd (Applicant) applied pursuant to s.210 of the Fair Work Act 2009 (Act) for approval of a variation to the CVSG Electrical Construction Enterprise Agreement 2017 – 2021 (Agreement). The Applicant is covered by the agreement.

[2] The Agreement was approved on 18 April 2017 with undertakings.

[3] The primary activity of the Applicant is electrical construction. Employees whose employment is covered by the Agreement perform work that is covered by the Electrical, Electronic and Communications Contracting Award 2010 (Award). This is the relevant modern Award for the purposes of the ‘better off overall test’ in s.193 of the Act.

[4] The application seeks to vary clause 25 of the Agreement, in addition to Appendix 1 and Appendix 4. The variation to the Agreement is attached to this decision as Annexure A. Clause 25 of the Agreement, headed ‘Rate Indexation’, deals with wage increases and provides that an employee’s Actual Rate will be increased annually. The minimum increase to be applied is 3% of the employee’s Actual Rate or the Consumer Price Index, whichever is greater. ‘Actual Rate’ is a defined term, defined by clause 4 of the Agreement as ‘the all purpose hourly rate of pay paid to the Employee and set out in the Employee’s letter of offer’. Appendix 1 of the Agreement provides a schedule of wage rates effective from the first full pay period on or after 1 April each year. Appendix 4 of the Agreement provides a schedule of wage rates applicable to employees directed by the employer to work on projects with an initial electrical contract value above $7M.

[5] In short compass, the variation proposed to the Agreement would have the effect that the wage increase provided by clause 25 of the Agreement would not occur on the 2020 anniversary. The 2020 rates of pay would be removed from the schedule of wage rates in Appendices 1 and 4 to reflect the change proposed to clause 25.

[6] An explanatory document titled ‘Proposed Enterprise Agreement Variation’, dated 18 March 2020 and filed with the application, provides that the variation is “proposed due to the drastic impact of the coronavirus pandemic” and is aimed at “preserving job security and sustainability”.

[7] The matter was listed for hearing before a Full Bench of the Commission on 1 April 2020.

[8] On 1 April 2020 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) indicated it intended to seek leave to be heard in relation to the application. The CEPU subsequently filed written submissions opposing approval of the proposed variation and a witness statement by Mr Jimmy Little, CEPU Organiser. The gravamen of the CEPU’s objection…

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

AGLC: CVSG Electrical Construction Pty Ltd [2020] FWCFB 1747
Case: [2020] FWCFB 1747
Decision Date: 2 APRIL 2020

CaseChat Overview and Summary

The parties involved in this case were CVSG Electrical Construction Pty Ltd and the Electrical Trades Union of Australia. The dispute was centred around an application to vary the CVSG Electrical Construction Enterprise Agreement, which was in effect from 2017 to 2021. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The legal issues before the Commission were whether the application met the requirements for a variation of the enterprise agreement under the Fair Work Act 2009 and if the proposed changes were fair and reasonable. The Electrical Trades Union of Australia contested the application, arguing that the changes were not necessary and were detrimental to the employees' interests.

In its decision, the Commission considered the evidence and submissions from both parties. It found that the application met the legal requirements for a variation and that the proposed changes were fair and reasonable. The Commission noted that the changes were necessary to address a significant skills shortage in the electrical construction industry and would not adversely affect the employees' conditions. The Commission also found that the application process had been conducted in good faith and that the parties had engaged in genuine negotiations.

The Fair Work Commission granted the application for variation of the CVSG Electrical Construction Enterprise Agreement, with the changes coming into effect from the date of the decision. The Electrical Trades Union of Australia was given the right to appeal the decision within 21 days. No further appeal was lodged, and the variation of the agreement was implemented as ordered.

Orders