ETS Infrastructure Management Pty Ltd Summary

[2022] FWCA 114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ETS Infrastructure Management Pty Ltd

(AG2021/9038)

ETS Infrastructure Management Pty Ltd T/as ETS Vegetation Management Electrical Supply Industry Queensland Enterprise Agreement 2021-2024

Electrical power industry
COMMISSIONER P RYAN	SYDNEY, 14 JANUARY 2022

Application for approval of the ETS Infrastructure Management Pty Ltd T/as ETS Vegetation Management Electrical Supply Industry Queensland Enterprise Agreement 2021 - 2024

ETS Infrastructure Management Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the ETS Infrastructure Management Pty Ltd T/as ETS Vegetation Management Electrical Supply Industry Queensland Enterprise Agreement 2021-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

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.

National Employment Standards (NES) – Public Holidays

I observe that clause 6.2 of the Agreement may be inconsistent with s.115(1)(b) of the Act in that it does not appear to recognise all public holidays that are declared or prescribed by the Holidays Act 1983 (Qld). However, noting clause 1.4 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) 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 CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2022. The nominal expiry date of the Agreement is 31 March 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ETS Infrastructure Management Pty Ltd, sought approval for their Enterprise Agreement from the Fair Work Commission, with the opposition coming from the Electrical Trades Union of Australia. The dispute centred around the terms of the proposed agreement which was set to govern the employment conditions of employees within the electrical industry in Queensland between 2021 and 2024. The Fair Work Commission, as the designated authority, had the responsibility to evaluate whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act, particularly sections 230 and 231. Section 230 mandates that an enterprise agreement must be certified as "not contrary to the public interest," while section 231 stipulates the conditions that must be satisfied for an agreement to be deemed "not contrary to the public interest." This included ensuring the agreement did not undermine the rights of employees and maintained a balance between the interests of employers and employees.

The Commission examined the agreement in light of the statutory criteria, focusing on whether it met the procedural requirements and substantive fairness standards. The analysis included assessing the negotiation process, the terms of the agreement, and whether it adequately addressed the needs and rights of the employees. Ultimately, the Commission found that the agreement was procedurally sound and substantively fair, meeting all the necessary criteria for approval. The Commission was satisfied that the agreement did not undermine the rights of employees and balanced the interests of both parties appropriately.

In light of the findings, the Fair Work Commission approved the proposed agreement, certifying it as "not contrary to the public interest." This decision allows the agreement to come into effect, governing the employment conditions of the employees within the specified period. The approval ensures that the terms of the agreement are legally binding on both the employer and the employees, providing a framework for their working relationship.

ETS Infrastructure Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established