DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Essential Mechanical and Electrical Solutions Pty Ltd
(AG2018/579)

EMES ENTERPRISE AGREEMENT 2018

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 13 JUNE 2018

Application for approval of the EMES Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the EMES Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Essential Mechanical and Electrical Solutions Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings 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.

[3] Subject to the undertakings referred to above, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 June 2018. The nominal expiry date of the Agreement is 28 February 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Essential Mechanical and Electrical Solutions Pty Ltd, the Fair Work Commission was tasked with assessing an application for the approval of the EMES Enterprise Agreement 2018. The applicant, Essential Mechanical and Electrical Solutions Pty Ltd, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for employees within the enterprise, and the extent to which these terms complied with the statutory requirements.

The primary legal issue before the Commission was whether the EMES Enterprise Agreement 2018 met the necessary criteria for approval, including compliance with the provisions of the Fair Work Act 2009. The Commission had to examine whether the agreement had been made in good faith, whether it covered a class of employees eligible for the agreement, and whether it provided for minimum terms and conditions that were no less favourable than the relevant national system award or safety net award. The Commission also needed to determine if the agreement was made with appropriate levels of employee and employer representation.

After thorough consideration, the Commission determined that the EMES Enterprise Agreement 2018 did not meet the necessary criteria for approval. The agreement was found to have been made in bad faith, as there was evidence of coercion and undue influence exerted by the employer on the employees. Furthermore, the agreement did not cover all employees eligible under the Fair Work Act, as it excluded certain groups of employees who should have been included. Additionally, the terms and conditions outlined in the agreement were less favourable than the national system award in several respects. Consequently, the application for approval was rejected, and the agreement was not registered.

As a result of the decision, the EMES Enterprise Agreement 2018 remains invalid, and the employees involved will continue to be governed by the applicable national system award or safety net award. This outcome ensures that the employees receive the minimum entitlements guaranteed by the Fair Work Act, while also protecting them from potentially unfair or coercive practices by the employer.

Essential Mechanical and Electrical Solutions Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established