Electel Resources Pty Ltd
[2022] FWCA 4126
•25 NOVEMBER 2022
| [2022] FWCA 4126 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Electel Resources Pty Ltd
(AG2022/4782)
Electel Resources Pty Ltd Enterprise Agreement 2022
| Electrical contracting industry | |
| COMMISSIONER PLATT | ADELAIDE, 25 NOVEMBER 2022 |
Application for approval of the Electel Resources Pty Ltd Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Electel Resources Pty Ltd Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Electel Resources Pty Ltd (the Applicant). The agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 23 November 2022 and was determined on the papers.
There are three National Employment Standards (NES) issues that require comment:
· Clause 9.5 of the Agreement, which deals with personal leave, states that annual sick leave for part-time employees shall be the average number of hours worked each week multiplied by two. This may result in a lesser entitlement than provided for under s.96 of the Act.
· Clause 43 of the Agreement contains an exhaustive list of public holidays that employees are entitled to but does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory, as provided by s.115(b) of the Act.
· Clause 48.4 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
Clause 7.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.
As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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 this organisation.
I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 July 2024.
COMMISSIONER
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