Fredon (VIC) Electrical Pty Ltd

[2022] FWCA 157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fredon (VIC) Electrical Pty Ltd

(AG2021/8973)

Fredon (VIC) Electrical Pty Ltd ETU Enterprise Agreement 2021–2025

Electrical contracting industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 20 JANUARY 2022

Application for approval of the Fredon (VIC) Electrical Pty Ltd ETU Enterprise Agreement 2021–2025

An application has been made for approval of an enterprise agreement known as the Fredon (VIC) Electrical Pty Ltd ETU Enterprise Agreement 2021–2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fredon (VIC) Electrical Pty Ltd. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 4.1(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 January 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Fredon (VIC) Electrical Pty Ltd, an employer, and its union, the Electrical Trades Union. The dispute centred around the approval of an enterprise agreement between the parties for the period 2021 to 2025. The case was heard and decided by the Fair Work Commission, the body responsible for regulating Australian workplace relations.

The key legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009, particularly sections relating to the procedural fairness and the substantive fairness of the agreement. This involved assessing whether the process used to negotiate the agreement was fair and whether the terms of the agreement were reasonable. The Commission also had to consider whether the agreement met the "better-off, overall test" which requires that no employee be worse off under the new agreement than they would be under the previous agreement or applicable law.

In delivering its decision, the Commission examined the evidence provided by both parties regarding the negotiation process. It found that the process was procedurally fair, as the union had been involved in good faith negotiations and the employer had provided necessary information to the union. The Commission also assessed the terms of the agreement against the statutory criteria for substantive fairness and found that they were reasonable, taking into account the current economic climate and the need to balance the interests of both employees and the employer. Importantly, the Commission concluded that the agreement met the better-off, overall test, as no employee would be disadvantaged by the new terms. Given these findings, the Commission approved the agreement.

The Fair Work Commission, having considered the evidence and arguments, approved the enterprise agreement. The approval ensures that the terms of the agreement will be legally binding on both the employer and the employees represented by the union, effective from the start date specified in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established