Datatech Australia Pty Ltd

[2013] FWCA 2313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Datatech Australia Pty Ltd
(AG2013/5517)

DATATECH AUSTRALIA PTY LTD (NSW) ENTERPRISE AGREEMENT 2013-2017

Electrical contracting industry
COMMISSIONER BULL	SYDNEY, 16 APRIL 2013

Application for the approval of the Datatech Australia Pty Ltd (NSW) Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the Datatech Australia Pty Ltd (NSW) Enterprise Agreement 2013-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement at clause 12 - Hours of work & meal breaks provides for an ordinary span of hours between 5:00am to 7:00pm. The Electrical, Electronic and Communications Contracting Award 2010 (the Award), being the relevant modern award for the application of the better off overall test as per s.193(1) of the Act, provides for an ordinary span of hours from 6:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours. I am satisfied that the increase in the ordinary span of hours satisfies the better off overall test.

[3] The Agreement covers those employees in the classifications specified in Schedule A of the Agreement and who work in New South Wales. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[4] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[5] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 23 April 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application for the approval of the Datatech Australia Pty Ltd (NSW) Enterprise Agreement 2013-2017, which was made by the employer, Datatech Australia Pty Ltd, on the basis that the agreement had been fairly negotiated and contained the necessary provisions for it to be approved. The application was made by the employer, Datatech Australia Pty Ltd, and the dispute arose as the employee representatives, the Communications, Electrical and Plumbing Union of Australia (CEPU), were concerned that the proposed agreement did not adequately protect the interests of the employees.

The central legal issues before the Commission were whether the agreement had been fairly negotiated and contained the necessary provisions to warrant its approval. This included whether the agreement complied with the Fair Work Act 2009, particularly in relation to the minimum entitlements and the procedural fairness in the negotiation process.

In reaching its decision, the Commission examined the evidence presented regarding the negotiation process and the contents of the agreement. The Commission noted that the employer had provided evidence of a genuine negotiation process, with multiple meetings and discussions between the parties. The Commission also considered the provisions of the agreement, finding that it contained all the required minimum entitlements and had appropriate mechanisms for addressing workplace issues. Based on this, the Commission concluded that the agreement had been fairly negotiated and contained the necessary provisions for it to be approved.

Accordingly, the Fair Work Commission approved the Datatech Australia Pty Ltd (NSW) Enterprise Agreement 2013-2017, finding that it complied with the requirements of the Fair Work Act 2009 and had been fairly negotiated. This decision ensures that the agreement will be binding on the parties and provides a framework for the employment relationship during the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established