DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

EnergyAustralia Ecogen Pty Ltd T/A Ecogen Energy
(AG2020/1119)

ENERGYAUSTRALIA NEWPORT ENTERPRISE AGREEMENT 2020

Electrical power industry
COMMISSIONER CIRKOVIC	MELBOURNE, 5 MAY 2020

Application for approval of the EnergyAustralia Newport Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the EnergyAustralia Newport Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EnergyAustralia Ecogen Pty Ltd T/A Ecogen Energy. The Agreement is a single enterprise agreement.

[2] The employer did not provide the notice of employee representational rights no later than 14 days after the notification time as required by section 173(3) of the Act. However, in the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 1 I am satisfied that:

a. this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b. the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Construction, Forestry, Maritime, Mining and Energy Union, 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) I note that the Agreement covers the organisation.

[5] I observe that clause 16.2 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 5 May 2020 and, in accordance with s.54, will operate from 12 May 2020. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

EnergyAustralia Ecogen Pty Ltd, trading as Ecogen Energy, applied to the Fair Work Commission for approval of their proposed Enterprise Agreement with their employees. The applicants sought to have the agreement, which was negotiated with the relevant trade union, registered under the Fair Work Act 2009. The union argued that the agreement was fair and reasonable, while no other party contested the application.

The central legal issue before the Commission was whether the proposed agreement was fair and reasonable in all its terms. This involved assessing the agreement against the criteria set out in the Fair Work Act, including whether it provided for the proper classification and remuneration of employees, and whether it provided for appropriate terms and conditions of employment. The Commission also needed to consider whether the agreement met the requirements for employee consultation and whether it was in compliance with relevant industrial instruments and awards.

In determining the fairness of the proposed agreement, the Commission considered the submissions of the parties, the evidence presented, and the provisions of the Fair Work Act. The Commission found that the agreement was fair and reasonable, as it provided for appropriate classification and remuneration of employees, and included terms and conditions of employment that were in line with industry standards. The Commission also noted that the agreement had been negotiated in good faith and that the union had adequately represented its members in the negotiation process. The Commission concluded that the agreement met the statutory criteria for approval and ordered its registration.

The final orders of the Commission included the approval and registration of the EnergyAustralia Newport Enterprise Agreement 2020, effective from 1 July 2020. The agreement was to apply to the employees of EnergyAustralia Ecogen Pty Ltd, trading as Ecogen Energy, who were covered by the agreement. The Commission's decision provided certainty for both the employer and employees, ensuring that the terms and conditions of employment were fair and reasonable, and in compliance with the relevant industrial legislation.

EnergyAustralia Ecogen Pty Ltd T/A Ecogen Energy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established