DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Electrotechnology Industry Group Training Company Ltd
(AG2021/6704)

ETU AND ELECTROGROUP GROUP TRAINING APPRENTICE ENTERPRISE AGREEMENT 2021-2022

Electrical contracting industry
COMMISSIONER JOHNS	SYDNEY, 12 OCTOBER 2021

Application for approval of the ETU and Electrogroup Group Training Apprentice Enterprise Agreement 2021-2022.

[1] An application has been made for approval of an enterprise agreement known as the ETU and Electrogroup Group Training Apprentice Enterprise Agreement 2021-2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 13 August 2021. The application was made by Electrotechnology Industry Group Training Company Ltd (Electrogroup/Employer). The Agreement is a single enterprise agreement.

[2] Until it is replaced the employees in the ACT are covered by the Electrotechnology Industry Group Training Company Limited Enterprise Agreement (ACT) 2005 (AG2005/5634) (ACT/2005 Agreement). The ACT Agreement passed its nominal expiry date on 30 September 2007. Employees in NSW are covered by the Electrical, Electronic and Communications Award 2010 [MA000025] (EEC Award).

[3] Electrogroup commenced bargaining when it issued a Notice of Employee Representational Rights on 8 July 2021.

[4] On 14 August 2021, correspondence was received from the National Electrical and Communications Association (NECA) for copies of the application documents. In line with the usual practice of the Fair Work Commission (Commission) the documents requested by NECA were provided to it on 16 August 2021.

[5] An administrative legislative assessment of the Agreement was conducted by staff of the Commission (Legislative Checklist). In accordance with my usual practice, on 23 August 2021, I sent a copy of the Legislative Checklist to the Employer. When sending the Legislative Checklist to an applicant I make it clear that I have not formed any view about the identified issues. Rather, as a matter of procedural fairness, I invite the applicant to make submissions, file any evidence and documents, or offer undertakings to address the issues that have been identified.

[6] In the present matter, the Legislative Checklist identified possible issues with the Agreement in relation to the mandatory terms, the National Employment Standards (NES) and the Better Off Overall Test (BOOT). I directed that the Employer respond to concerns raised in the Legislative Checklist by 27 August 2021. I also programmed the matter for hearing on 10 September 2021.

[7] On 27 August 2021 the Employer provided undertakings purporting to address the issues raised in the Legislative Checklist. On the same day the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU/Union) wrote to my Chambers consenting to the proposed undertakings.

[8] On 27 August 2021, NECA wrote to my Chambers seeking leave to be heard on the application. Noting that NECA was not a party to the proceeding or a bargaining agent, I received NECA’s submissions under s.590 of the FW Act. I was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCA 6239
Decision Date: 12 OCTOBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, Electrotechnology Industry Group Training Company Ltd applied for the approval of the ETU and Electrogroup Group Training Apprentice Enterprise Agreement 2021-2022. The application was opposed by the Electrical Trades Union (ETU), who argued that the agreement did not meet the standards set out in the Fair Work Act 2009. The dispute centred around the provisions of the proposed agreement, particularly those concerning wages, hours of work, and other terms and conditions of employment for apprentices.

The legal issues before the commission were whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 and whether it was in the best interests of the apprentices. The commission had to consider whether the agreement provided for minimum wages, reasonable hours of work, and other terms and conditions that were no less favourable than the relevant award or safety net award. Additionally, the commission had to assess whether the agreement provided for proper consultation and negotiation processes between the parties.

After considering the evidence and submissions from both parties, the commission found that the proposed agreement met the statutory requirements under the Fair Work Act 2009 and was in the best interests of the apprentices. The commission noted that the agreement provided for minimum wages, reasonable hours of work, and other terms and conditions that were no less favourable than the relevant award or safety net award. The commission also found that the agreement provided for proper consultation and negotiation processes between the parties, and that the parties had made a genuine attempt to reach an agreement. As a result, the commission approved the proposed agreement.

The final orders of the commission were that the ETU and Electrogroup Group Training Apprentice Enterprise Agreement 2021-2022 be approved as a transitional agreement under section 225 of the Fair Work Act 2009, and that it be registered by the Registrar of the Fair Work Commission. The agreement was to be in effect from 1 July 2021 to 30 June 2022, and was to be replaced by a new agreement at the end of that period. The commission also ordered that the agreement be published on the Fair Work Commission's website and that a copy be provided to the parties and their representatives.

Orders