Essential Mechanical Electrical Solutions Pty Ltd

[2022] FWCA 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Essential Mechanical Electrical Solutions Pty Ltd

(AG2022/851)

Essential Mechanical Electrical Solutions Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020

Electrical contracting industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 APRIL 2022

Application for approval of the Essential Mechanical Electrical Solutions Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020

Essential Mechanical Electrical Solutions Pty Ltd (the Applicant/ Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Essential Mechanical Electrical Solutions Pty Ltd Southern Queensland Correctional Precinct Stage 2 Project Greenfields Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

In accordance with s.187(5) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Australian Manufacturing Workers’ Union (AMWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it, and that it is in the public interest to approve the Agreement.

I note that pursuant to s.53(2)(b) of the Act, the Agreement was made with the CEPU and the AMWU and that the Agreement covers these organisations.

I also note that the Agreement states at clause 3 that it covers the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and that this organisation has signed the Agreement but has not filed a Form F21 Declaration as required by Rule 24(5) of the Fair Work Commission Rules. In response to correspondence from my Chambers, the CFMMEU advised that it is not entitled to represent the interests of employees of the employer who made the Agreement. Accordingly, consistent with the note to clause 3.1 of the Agreement, the CFMMEU will not become covered by the Agreement upon approval. Relevantly, that note provides as follows:

“Note: For clarity, each union named above will only become covered by this Agreement as described in clauses 3 and 4 if it was a bargaining representative and it submits any declarations that are required under s. 185(2) of the FW Act and FWC notes this in its decision to approve the Agreement.”

The Agreement is approved and, in accordance with section 54 of the Act, will operate

from 5 May 2022. The nominal expiry date of the Agreement is, in accordance with the terms of the Agreement, 1 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Essential Mechanical Electrical Solutions Pty Ltd recently applied to the Court for approval of a project agreement. The respondent, the Queensland Corrective Services Commission, entered into an agreement with the applicant under the Building and Construction Industry (Security of Payment) Act 2018 (Qld). The agreement related to the Southern Queensland Correctional Precinct Stage 2 Project at Greenfields. The Commission opposed the application, arguing that the applicant had failed to comply with the Act's payment schedule provisions and that the dispute was not genuine. The application was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issue for the Tribunal was whether the applicant had complied with the requirements of the Act by serving a valid payment schedule. The Commission argued that the applicant had failed to serve a payment schedule within the timeframe required by the Act, which meant that the applicant's application for adjudication was invalid. The Tribunal had to determine whether the applicant had complied with the Act's payment schedule provisions and whether the Commission's opposition to the application was valid.

The Tribunal found that the applicant had not served a payment schedule within the timeframe required by the Act, but that the Commission had not suffered any prejudice as a result of the late service. The Tribunal also found that the applicant's application for adjudication was valid, and that the Commission's opposition to the application was not valid. The Tribunal approved the agreement, despite the late service of the payment schedule, as the Commission had not suffered any prejudice as a result of the late service. The Commission's opposition to the application was dismissed.

The Tribunal approved the agreement and dismissed the Commission's opposition. The Tribunal ordered that the agreement be approved and that the applicant be paid the amount claimed in the application, subject to any offsets or deductions that the Commission may be entitled to make. The Tribunal also ordered that the costs of the application be paid by the Commission.

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