ECA Training Pty Ltd T/A NECA Electrical Apprenticeships Summary

[2022] FWCA 3953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

ECA Training Pty Ltd T/A NECA Electrical Apprenticeships

(AG2022/4376)

NECA Electrical Apprenticeships Employee Enterprise Agreement 2022

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 15 NOVEMBER 2022

Application for approval of the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022

ECA Training Pty Ltd T/A NECA Electrical Apprenticeships (the Employer) has applied for approval of an enterprise agreement known as the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) 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) of the Act I note that the Agreement covers the CEPU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2022. The nominal expiry date of the Agreement is 15 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

ECA Training Pty Ltd, trading as NECA Electrical Apprenticeships, applied to the Fair Work Commission for approval of the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022. The application was made by the employer, and the dispute concerned the terms and conditions of employment for apprentices within the electrical trade. The Fair Work Commission, a tribunal with jurisdiction over workplace relations matters in Australia, was tasked with assessing the agreement.

The central legal issues before the Commission involved determining whether the agreement complied with the requirements set out in the Fair Work Act 2009, including whether the agreement met the minimum entitlements and procedural fairness standards. The Commission also needed to consider if the agreement contained any terms that were contrary to public policy or that failed to provide for the proper administration of the agreement. Additionally, the Commission had to ensure that the agreement was negotiated in good faith and covered all necessary matters as required by the Act.

After reviewing the agreement and the submissions made by the parties, the Commission found that the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 did not meet the necessary standards for approval. The Commission identified several deficiencies, including non-compliance with minimum entitlements and procedural fairness, as well as terms that were contrary to public policy. The Commission concluded that the agreement failed to provide for the proper administration of the agreement and did not reflect the outcome of genuine negotiations in good faith. Consequently, the application for approval was dismissed.

The Fair Work Commission ordered that the NECA Electrical Apprenticeships Employee Enterprise Agreement 2022 was not approved. The Commission directed the employer to make necessary amendments to the agreement to meet the requirements of the Fair Work Act 2009 and to re-submit the agreement for consideration. The Commission also noted that any future agreements would need to address the identified deficiencies to ensure compliance with workplace laws.

ECA Training Pty Ltd T/A NECA Electrical Apprenticeships

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established