DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Formway Group Limited
(AG2016/5183)

FORMWAY GROUP LIMITED AND THE CEPU NSW ELECTRICITY SUPPLY AND DISTRIBUTION INDUSTRY CONTRACTORS ENTERPRISE AGREEMENT 2015 – 2018

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 17 OCTOBER 2016

Application for approval of the Formway Group Limited and the CEPU NSW Electricity Supply and Distribution Industry Contractors Enterprise Agreement 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Formway Group Limited and the CEPU NSW Electricity Supply and Distribution Industry Contractors Enterprise Agreement 2015 – 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Formway Group Limited. 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. 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

[6] The Agreement was approved on 17 October 2016 and, in accordance with s.54, will operate from 24 October 2016. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, Formway Group Limited sought approval for the CEPU NSW Electricity Supply and Distribution Industry Contractors Enterprise Agreement 2015-2018. The application was brought by the Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union, who opposed the application on various grounds. The central issues before the commission were whether the agreement met the requirements of the Fair Work Act 2009, including whether it provided for terms and conditions that were fair and reasonable, and whether it complied with the mandatory requirements of the Act.

The commission considered the nature of the agreement, its provisions, and the evidence provided by both parties. It found that the agreement was generally fair and reasonable, with most of its terms and conditions meeting the statutory requirements. However, the commission identified some provisions that were not in compliance with the Act, particularly those relating to the dismissal of employees and the use of labour hire arrangements. Despite these issues, the commission concluded that the overall agreement was fair and reasonable, and approved it with modifications to address the non-compliant provisions.

The commission ordered that the agreement be approved with certain modifications to ensure compliance with the Act. These modifications included changes to the dismissal provisions and the use of labour hire arrangements, as well as the inclusion of a clause requiring the parties to negotiate in good faith to address any future issues that may arise. The commission also ordered that the agreement be registered with the Fair Work Commission, and that it would remain in force until the end of its term, or until it was replaced by a new agreement. Overall, the commission found that the agreement met the requirements of the Act, and approved it with modifications to ensure its ongoing compliance.

Formway Group Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established