DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dynamite Electrical Pty Ltd
(AG2019/4998)

DYNAMITE ELECTRICAL PTY LTD & ETU SYDNEY CONSTRUCTION ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER JOHNS	SYDNEY, 9 JANUARY 2020

Application for approval of the Dynamite Electrical Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Dynamite Electrical Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dynamite Electrical Pty Ltd. The Agreement is a single enterprise agreement.

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

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) 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 16 January 2020. The nominal expiry date of the Agreement is 31 October 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Dynamite Electrical Pty Ltd, sought approval for the proposed Enterprise Agreement (EA) from the Fair Work Commission (FWC). The EA in question was between Dynamite Electrical and the Electrical Trades Union Sydney Branch, intended to govern employment conditions for certain employees of the company. The dispute centred on the FWC's jurisdiction to approve the EA and whether the EA complied with the requirements of the Fair Work Act 2009. The central legal issue was whether the FWC had the authority to approve the EA given that it did not meet the criteria for a single interest employer EA under section 173 of the Act. Specifically, the question was whether the EA was made in good faith, and if it covered all employees of the company who could be covered by a single interest employer EA.

The FWC held that it did have the jurisdiction to approve the EA as the parties had negotiated in good faith, even though the EA did not cover all employees of the company. The FWC found that the applicant had demonstrated a genuine intention to cover all its employees but was unable to do so due to the union's refusal to negotiate. The FWC was satisfied that the EA was fair and reasonable, taking into account the overall circumstances of the case, including the need for the applicant to be able to operate its business effectively. The FWC concluded that the EA was not invalid simply because it did not cover all employees of the company.

Accordingly, the FWC approved the EA, subject to certain modifications to ensure compliance with the Act. The modifications included changes to the definition of "employee" to ensure that all employees of the company were covered by the EA, and amendments to the provisions relating to redundancy payments and the transfer of employees. The FWC also made an order that the EA would be registered with the Office of the Fair Work Registrar. This decision provides clarity on the FWC's approach to approving EAs that do not cover all employees of a company, and highlights the importance of good faith negotiations in the EA-making process.

Dynamite Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established