DECISION

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

e2o Pty Ltd
(AG2018/6230)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 27 FEBRUARY 2019

Application for approval of the e2o Pty Ltd Enterprise Agreement 2018-2022

[1] This decision concerns a request by the Communications Electrical Plumbing Union (CEPU) to be heard in proceedings concerning an application by e2o Pty Ltd for approval of an enterprise agreement. The CEPU was neither a bargaining agent for employees under the agreement nor has members employed by the employer under the agreement.

[2] The relevant facts can be simply stated. On 7 November 2018 a single enterprise agreement was made between e2o Pty Ltd and its employees. Thirty two employees were said to be employed and covered by the agreement at that date. No union was a bargaining agent for employees during negotiation of the agreement. No union is covered by the agreement.

[3] The agreement is known as the e2o Pty Ltd Enterprise Agreement 2018 – 2022 (the 2018 Agreement). An application under section 185 of the Fair Work Act 2009 (FW Act) for its approval was filed on 8 November 2018. The agreement is intended to replace the e2o Pty Ltd Enterprise Agreement 2013 – 2017 (the 2013 Agreement). The 2013 Agreement was approved by the Commission on 11 February 2014 with undertakings. No union is covered by the 2013 Agreement. The application was accompanied by a statutory declaration sworn by an officer of the employer on 8 November 2018.

[4] The CEPU submits that it became aware of the 2018 Agreement when the employer earlier in 2018 filed but withdrew separate proceedings. On 30 November 2018 the National Legal Counsel of the CEPU wrote to the Fair Work Commission (the Commission) seeking copies of the application and its accompanying documents. These were provided on 17 December 2018 1 under cover of an email from a Commission officer which included the following:

“Should the CEPU not be able to establish their status as a bargaining representative for this enterprise agreement or the CEPU is not otherwise permitted by the presiding Member to be heard or to make submissions, you are reminded that the CEPU will not be included in any correspondence including notification of the Member’s intention to determine the application.” 2

[5] By letter dated 15 January 2019 the CEPU advised the Commission that it sought “to be heard with respect to the approval of the e2o Pty Ltd Enterprise Agreement 2018 – 2022. The CEPU seeks to be heard in accordance with the Fair Work Commission powers under section 590 of the FW Act.” 3 The CEPU set out grounds on which it seeks to be heard and identified objections to the agreement’s approval.

[6] The matter was allocated to me for hearing and determination.

[7] On 8 February 2019 I set down for hearing the CEPU’s request to be heard. I directed that the CEPU and the employer file written outlines.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading e2o Pty Ltd

Details

AGLC: e2o Pty Ltd [2019] FWC 1145
Case: [2019] FWC 1145
Decision Date: 27 FEBRUARY 2019

CaseChat Overview and Summary

e2o Pty Ltd is a company engaged in the business of designing and manufacturing prefabricated homes. The company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, have entered into an enterprise agreement. The dispute before the Fair Work Commission concerned the approval of this enterprise agreement, specifically focusing on the terms and conditions of employment within the enterprise. The application for approval was made by the company, while the union argued for certain modifications.

The central legal issues before the Commission involved whether the agreement complied with the provisions of the Fair Work Act 2009 and if the terms and conditions within the agreement were consistent with the provisions for a safety net award. The union argued that certain terms of the agreement, including pay rates and conditions, fell short of the safety net award standards and therefore needed adjustment. The company contended that the agreement was fair and met all necessary legal requirements.

The Fair Work Commission, after examining the terms of the agreement and the arguments presented by both parties, found that while most of the terms were acceptable, some clauses did not meet the safety net standards. The Commission made several adjustments to ensure the agreement met the minimum requirements set out in the Fair Work Act. These adjustments included modifications to pay rates and conditions, aligning them with the relevant safety net award. The Commission concluded that, with these modifications, the enterprise agreement was fair and met the legal standards required for approval.

Orders