Electromaster Holdings (NSW) Pty Ltd

[2019] FWCA 7716

[2019] FWCA 7716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Electromaster Holdings (NSW) Pty Ltd
(AG2019/3732)

ELECTROMASTER HOLDINGS (NSW) PTY LTD ENTERPRISE AGREEMENT 2019

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 NOVEMBER 2019

Application for approval of the Electromaster Holdings (NSW) Pty Ltd Enterprise Agreement 2019

[1] Electromaster Holdings (NSW) Pty Ltd has made an application for approval of an enterprise agreement known as the Electromaster Holdings (NSW) Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) was a bargaining representative for the Agreement and filed an F18 statutory declaration, sworn by Mr Daniel Austin, a research officer employed by the union. In his declaration, Mr Austin stated that the CEPU did not support the approval of the Agreement and raised two objections.

[3] First, the CEPU contended that the employees to be covered by the proposed agreement did not receive a notice of employee representational rights (NERR) in the prescribed form, because the notice provided to them appeared on company letterhead, was dated, and showed a footer with company contact information. The union submitted that because employees did not receive a valid NERR the Agreement was not ‘genuinely agreed’ for the purpose of s 188(1).

[4] Secondly, the CEPU contended that the employer’s F17 statutory declaration did not refer to a number of conditions in the Agreement which are less beneficial than those in the Electrical, Electronic and Communications Contracting Award 2010 (Award) or the National Employment Standards (NES). The following propositions were advanced:

● the ‘living away from home allowance’ in clause 29 of the Agreement would in some cases be less beneficial to employees than the allowance in clause 17.6 of the Award;

● clause 19(c)(i) of the Agreement requires employees to notify the employer of the nature of an illness when taking personal leave, whereas the NES does not require this;

● the summary of the parental leave in clause 22(b) of the Agreement omits reference to an employee’s NES right to request a further 12 months’ leave under s 76 of the Act;

● the termination provision in clause 33 of the Agreement, as it relates to abandonment of employment, might operate to exclude the NES minimum notice provisions in s 117;

● clause 40 of the Agreement restricts the use of mobile phones during paid meal breaks, whereas the rest break provisions in the Award do not contain such limitations;

● clause 36 and 40(c) were said to provide for unreasonable deductions.

[5] I understand these matters to be raised in connection with concerns held by the union as to whether the Agreement passes the ‘better off overall test’ (BOOT), whether the Agreement excludes the NES, and whether the agreement was genuinely agreed. The CEPU did not seek to be heard further on its objections but asked that the Commission take them into account in considering whether to approve the Agreement. In its F18 the union gave notice under s 183 that, if the Agreement is approved, the CEPU wants the Agreement to cover it.

[6] The National Electrical and Communications Association (NECA), on behalf of the company, contended that the CEPU should not be allowed to intervene in the approval application because the union did not take any active role in the bargaining, and because the objections raised by the union have no merit. NECA contended that the Commission should be satisfied, for the purposes of s 188(2), that any departure from the requirement to issue a NERR in the prescribed form was a minor procedural or technical error, and that employees were not likely to have been disadvantaged by the error. NECA submits that the distant work and rest break provisions in the Agreement are not less beneficial than their award counterparts. It says that clause 10 of the Agreement, which contains a NES precedence clause, ensures that the terms of the Agreement do not exclude the NES. It also says that clauses 36 and 40(c) are not less beneficial than the Award and do not give rise to concerns about the BOOT.

Consideration

[7] The CEPU was a bargaining representative for the Agreement. It has a right to be heard in the application for the approval of the Agreement, even if it did not take any active part in negotiations. I have considered the union’s objections to the application and concluded that they present no obstacle to the Agreement’s approval.

[8] I am satisfied that the failure of the company to issue a NERR in strict conformity to the prescribed document is a minor technical error for the purposes of s 188(2), that employees covered by the Agreement are not likely to have been disadvantaged by the error, and that the Agreement was genuinely approved. The union did not allege that any employee was disadvantaged by the error, and there is no basis to conclude that any employee was in fact disadvantaged.

[9] I am also satisfied that the terms of the Agreement do not contravene s 55, which states that an enterprise agreement must not exclude the NES or any provision of the NES (see s 186(2)(c)). I do not consider that the disputed provisions of the Agreement are inconsistent with the NES, but in any event, clause 10 of the Agreement states that the NES ‘applies at all times’ to an employee covered by the Agreement, and that, where the NES provides a benefit or condition or entitlement that is ‘more favourable in a particular respect’ than one contained in the Agreement, the latter ‘shall be overridden to the extent of any less favourable inconsistency with the NES’. Although it does not specifically say so, the clause clearly means that where the NES is more favourable to an employee in a particular respect, it shall prevail. The NES cannot be said to be excluded by a clause of an agreement that provides a more favourable outcome to an employee in a particular respect. As s 61 makes clear, the NES sets out minimum standards that apply to the employment of employees and that these cannot be displaced, however this does not preclude more favourable arrangements being afforded to employees.

[10] As to clause 29 of the Agreement, the definition of ‘distant work’ is similar to that in the Award, and references to particular distances from the home and the division office are stated to be a guide only. Even if the clause could operate less favourably to employees than the Award provision in some circumstances, employees are still better off overall under the Agreement than under the Award, in light of the higher wages in the Agreement.

[11] As to the restrictions in clause 40 on the use of mobile phones during breaks, it is not clear to me that these should be regarded as a detriment that weighs in the analysis of the BOOT. Some employees might welcome limitations on the use of phones during breaks. Even if it is considered a detriment, employees remain clearly better off overall under the Agreement because of the higher wages it contains.

[12] The arrangements for deductions in clauses 36 and 40(c) (for overpayments and personal calls made on company telephones) do not in my assessment attract any significant weight in the BOOT, and whether those provisions are compatible with Division 2 of Part 2-9 (which concerns deductions) is not a matter I am required to consider in an application under s 185. Of course, s 326 provides that non-conforming deduction provisions have no effect.

[13] The company has provided written undertakings, a copy of which is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

[14] Subject to these undertakings, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[15] In accordance with s 201(2) and based on the statutory declaration provided by the CEPU, the Agreement covers the organisation.

[16] The Agreement was approved on 15 November 2019 and, in accordance with s 54, will operate from 22 November 2019. Its nominal expiry date is 15 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE506051 PR714153>

Annexure A