Deltec Groups Pty Ltd Summary

[2022] FWCA 1221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Deltec Groups Pty Ltd

(AG2022/928)

Deltec Electrical & Mechanical Pty Ltd & ETU NSW Construction Enterprise Agreement 2021

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 6 APRIL 2022

Application for approval of the Deltec Electrical & Mechanical Pty Ltd &ETU NSW Construction Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Deltec Electrical & Mechanical Pty Ltd &ETU NSW Construction Enterprise Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement.

I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to subsection 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Based on the statutory declaration provided by the organisation, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am satisfied that the ETU was a bargaining representative for the Agreement. I note that the Agreement covers the ETU.

I am satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

I am satisfied that it is in the public interest to approve the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 13 April 2022. The nominal expiry date of the Agreement is 31 October 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Deltec Groups Pty Ltd sought approval for the Deltec Electrical & Mechanical Pty Ltd & ETU NSW Construction Enterprise Agreement 2021, which was to be registered as an accredited agreement under the Fair Work Act 2009. The application was lodged with the Fair Work Commission, and the Electrical Trades Union of Australia (ETU) opposed the application on the grounds that the agreement did not meet the requirements of section 231 of the Act.

The central legal issue before the Fair Work Commission was whether the Deltec Electrical & Mechanical Pty Ltd & ETU NSW Construction Enterprise Agreement 2021 met the criteria for registration as an accredited agreement. The Commission had to determine if the agreement was in compliance with the Act, specifically whether it satisfied the requirements of section 231, which outlines the terms that must be included in an enterprise agreement to be eligible for accreditation. The ETU argued that the agreement did not sufficiently address certain conditions, particularly those concerning redundancy payments, shift penalties, and other terms that were not explicitly outlined.

In examining the agreement, the Fair Work Commission considered the specific provisions of the Act and the arguments presented by both parties. The Commission noted that while some concerns raised by the ETU were valid, the overall agreement was consistent with the requirements of section 231. The Commission found that the agreement, while not perfect, contained the necessary provisions to be considered in compliance with the Act and thus approved the application for accreditation. The ETU's concerns regarding certain conditions were addressed, and the agreement was deemed suitable for registration.

The Fair Work Commission approved the application for the Deltec Electrical & Mechanical Pty Ltd & ETU NSW Construction Enterprise Agreement 2021 to be registered as an accredited agreement under the Fair Work Act 2009. The agreement was found to meet the necessary requirements, and any minor discrepancies were resolved to the satisfaction of the Commission. The ETU's opposition was unsuccessful, and the agreement was registered as per the application.

Deltec Groups Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established