e2o Pty Ltd

[2019] FWCA 1992

[2019] FWCA 1992

FAIR WORK COMMISSION

DECISION

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

e2o Pty Ltd
(AG2018/6230)

E2O PTY LTD ENTERPRISE AGREEMENT 2018-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 27 MARCH 2019

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

[1] An application has been made to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the e2o Pty Ltd Enterprise Agreement 2018-2022 (the Agreement) pursuant to section 185 of the Fair Work Act 2009 (the FW Act). The Applicant is e2o Pty Ltd (e2o or the Applicant employer). The agreement is a single enterprise agreement.

[2] The Agreement was made by the Applicant employer with its employees on 7 November 2018. No union was a bargaining agent for employees during negotiation of the agreement. No union is covered by the agreement.

[3] 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.

[4] The matter was allocated to my Chambers on 4 February 2019.

[5] The Communications Electrical Plumbing Union (CEPU) sought to be heard in proceedings concerning this application for approval. I conducted a hearing on that question on 20 February 2019. By decision dated 27 February 2019 1 I was not persuaded to exercise discretion in favour of the CEPU being heard beyond that already provided by way of written and oral submissions.

[6] I issued Directions on the application on 28 February 2019 setting the matter down for a pre-hearing conference and for a hearing. The Directions issued raised issues with the Applicant employer which I considered may impact on the approval of the Agreement.

[7] I conducted a pre-hearing conference on the application on 20 March 2019.

[8] The Applicant employer provided the Commission with written submissions dated 22 March 2019 and a revised written undertaking dated 26 March 2019.

[9] On 27 March 2019, I conducted a hearing on the application. No bargaining representative of employees appeared at the hearing notwithstanding notice having been provided. The Applicant employer made oral submissions in addition to its written submissions. The Applicant employer outlined the terms and intended effect of the Agreement and of its revised undertaking of 26 March 2019. I heard oral evidence from an officer of the Applicant employer, Emily Robertson.

[10] The revised undertaking submitted by the Applicant employer is made under section 190 of the FW Act. A copy of the undertaking is attached as Annexure A. The undertaking deals with the following matters:

● a National Employment Standards (NES) precedence clause; and

● the operation of the Annual Salary provisions and the Total Hourly Rate of Pay provisions in Appendix 1 of the Agreement, including the operation of these provisions in circumstances where an employee ceases employment prior to the completion of a designated roster cycle.

[11] I accept the written undertaking of 26 March 2019 under section 190(3) of the FW Act. I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee nor result in substantial changes to the Agreement. As a result, the undertaking is taken to be a term of the Agreement.

[12] I have considered the evidence and submissions before me including the matters raised in my Directions of 28 February 2019 and responses thereto. On the basis of the material contained in the application, the statutory declarations of Emily Robertson dated 8 November 2018 and 27 March 2019, the oral evidence of Emily Robertson, the submissions provided by e2o Pty Ltd and the undertaking attached as Annexure A, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met.

[13] The Agreement is approved and, in accordance with section 54 of the FW Act, will operate from 7 days from this date of approval. The nominal expiry date is 27 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE502527  PR706230>

Annexure A

 1   [2019] FWC 1145