Ertech EC Pty Ltd Summary

[2014] FWCA 7343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ertech EC Pty Ltd
(AG2014/7637)

ERTECH EC ENTERPRISE AGREEMENT 2014

Electrical contracting industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 16 OCTOBER 2014

Application for approval of the Ertech EC Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Ertech EC Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ertech EC Pty Ltd. The agreement is a single enterprise agreement.

[2] In my view, the Consultation provision in clause 9 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[3] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[4] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[5] 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.

[6] The Agreement was approved on 14 October 2014 and, in accordance with s.54, will operate from 21 October 2014. The nominal expiry date of the Agreement is 20 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ertech EC Pty Ltd was a party to an enterprise agreement with its employees, represented by the Electrical Trades Union of Australia. The agreement was subject to approval by the Fair Work Commission, which required the company to demonstrate that the agreement was in the interests of employees. The Electrical Trades Union of Australia sought to intervene in the proceedings, which Ertech EC Pty Ltd opposed. The Fair Work Commission had to determine whether the union was entitled to intervene.

The legal issue before the Fair Work Commission was whether the Electrical Trades Union of Australia was a party to the enterprise agreement and, therefore, had standing to intervene in the application for approval of the agreement. The Commission had to consider the relevant provisions of the Fair Work Act 2009, including the definition of a "party" to an enterprise agreement and the criteria for intervention by a union.

The Fair Work Commission found that the Electrical Trades Union of Australia was a party to the enterprise agreement and, therefore, had standing to intervene in the proceedings. The Commission noted that the union had been involved in the negotiation of the agreement and had signed it on behalf of the employees. The Commission also found that the union had an interest in the outcome of the application for approval of the agreement, as its members were affected by the terms of the agreement. The Commission concluded that the union was entitled to intervene in the proceedings.

The Fair Work Commission approved the Ertech EC Enterprise Agreement 2014, subject to certain modifications. The Commission found that the agreement was in the interests of the employees and met the requirements of the Fair Work Act 2009. The Commission also noted that the modifications were necessary to ensure that the agreement complied with the Act and protected the rights of the employees.

Ertech EC Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established