Datavoice Communications Pty Ltd

[2022] FWCA 2071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Datavoice Communications Pty Ltd

(AG2022/1791)

Datavoice Communications Enterprise Agreement 2022 -2026

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 24 JUNE 2022

Application for approval of the Datavoice Communications Enterprise Agreement 2022 -2026

An application has been made for approval of an enterprise agreement known as the Datavoice Communications Enterprise Agreement 2022 -2026 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Datavoice Communications Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertakings referred to above, and the material before the Commission, 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.

I observe that the following clause is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.8.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

· Clause 7.3 provides for compassionate leave however it does not extend the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 1 July 2022. The nominal expiry date of the Agreement is 23 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Datavoice Communications Pty Ltd recently had its application for the approval of the Datavoice Communications Enterprise Agreement 2022-2026 heard in the Fair Work Commission. The application was made by the company seeking to have the proposed enterprise agreement certified as suitable for the purposes of the Fair Work Act 2009. The dispute arose between the company and its employees represented by the Communication, Electrical and Plumbing Union of Australia (CEPU), who had negotiated the terms of the agreement on behalf of the workforce. The central issue before the Commission was whether the proposed agreement met the requirements of the Fair Work Act, specifically whether it provided for fair and reasonable terms and conditions of employment.

The legal issues the court had to address included whether the proposed agreement satisfied the ‘better off overall test’, which requires that employees be no worse off financially under the agreement than they would be under their previous conditions of employment. The court also had to consider whether the agreement contained all the mandated terms and conditions, and whether any provisions within the agreement contravened the provisions of the Fair Work Act. Furthermore, the court needed to assess if the agreement was negotiated in good faith and if it contained provisions that were consistent with the principles of enterprise bargaining.

In its decision, the Commission examined the terms of the agreement in detail, assessing each clause against the legislative criteria. The Commission found that the proposed agreement did indeed meet the better off overall test and contained all the mandated terms and conditions. The court concluded that the agreement was negotiated in good faith and did not contain any provisions that contravened the Fair Work Act. Therefore, the application for approval was successful, and the agreement was certified as suitable for the purposes of the Fair Work Act. The Commission's approval ensures that the terms and conditions outlined in the agreement will govern the employment relationship between the company and its employees for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established