DESA Australia Pty Limited

[2013] FWCA 8305

FAIR WORK COMMISSION

DECISION

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

DESA Australia Pty Limited
(AG2013/9696)

DESA AUSTRALIA PTY LIMITED & CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2012-2015

Electrical contracting industry
COMMISSIONER RIORDAN	SYDNEY, 23 OCTOBER 2013

Application for approval of the DESA Australia Pty Limited & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015.

[1] An application has been made for approval of an enterprise agreement known asthe DESA Australia Pty Limited & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DESA Australia Pty Limited (the Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) has given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

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CaseChat Overview and Summary

DESA Australia Pty Limited recently sought approval for the DESA Australia Pty Limited & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015 before the Fair Work Commission (FWC). The applicant, DESA Australia, an electrical contractor, and the respondent, CEPU Electrical Division Queensland, a trade union, were parties to this enterprise agreement. The primary dispute centred around the terms and conditions of employment within the agreement, particularly whether it met the requirements of the Fair Work Act 2009 (FW Act) for approval.

The legal issues before the FWC encompassed whether the enterprise agreement complied with the procedural requirements under the FW Act and whether it satisfied the "better off overall test" (BOOT). This test mandates that employees, on average, should not be worse off financially under the new agreement compared to their previous conditions. Additionally, the court had to determine if the agreement contained provisions that were contrary to public policy or unfair.

In its decision, the FWC meticulously examined the procedural compliance of the agreement, confirming that the necessary steps had been followed. The commission also assessed the financial implications of the agreement for the employees, concluding that the BOOT was met. The FWC found that the agreement provided overall benefits to the employees, including enhanced pay and conditions. Consequently, the commission approved the enterprise agreement, finding it to be fair and compliant with the statutory requirements.

The FWC's final order was the approval of the DESA Australia Pty Limited & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015, effective from the date of the decision. The approval signified that the agreement could be implemented, and the terms would govern the employment conditions between DESA Australia and CEPU Electrical Division Queensland for 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