EDSA Group Pty Ltd

[2023] FWCA 575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

EDSA Group Pty Ltd

(AG2023/292)

EDSA Group Pty Ltd Enterprise Agreement 2023-2027

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 22 FEBRUARY 2023

Application for approval of the EDSA Group Pty Ltd Enterprise Agreement 2023-2027

An application has been made for approval of an enterprise agreement known as the EDSA Group Pty Ltd Enterprise Agreement 2023-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EDSA Group Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and in accordance with s.54, will operate from 1 March 2023. The nominal expiry date of the Agreement is 22 February 2027.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, EDSA Group Pty Ltd, an applicant employer, sought approval for a new enterprise agreement that was to govern its employees from 2023 to 2027. The application was opposed by various unions representing the employees, who argued that the proposed agreement did not meet the necessary standards for fair and equitable terms and conditions of employment. The central dispute centred on several contentious clauses within the agreement, including provisions related to wages, working hours, and redundancies.

The primary legal issues before the Commission were whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009, particularly in terms of ensuring that the agreement met the 'better off overall test'. This test required the Commission to determine if the agreement was likely to be better for the employees than the applicable award or other relevant industrial instrument. Additionally, the Commission had to consider whether the agreement provided for procedural fairness and if it complied with the good faith bargaining requirements.

After considering the submissions from both parties, the Commission concluded that the proposed enterprise agreement did not meet the necessary standards for approval. The Commission found that certain provisions, particularly those relating to wages and redundancies, did not adequately protect the interests of the employees and did not satisfy the better off overall test. The Commission also noted that the process of bargaining, while not devoid of good faith, fell short in adequately addressing the concerns raised by the unions. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the EDSA Group Pty Ltd Enterprise Agreement 2023-2027 be dismissed and directed the parties to continue their negotiations to reach a more equitable agreement. The Commission emphasised the importance of addressing the concerns of all stakeholders to ensure a fair and balanced outcome.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established