Galpern Group Pty Ltd

[2022] FWCA 2681

[2022] FWCA 2681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Galpern Group Pty Ltd

(AG2022/1698)

Galpern Group Pty Ltd Single Enterprise Agreement 2021

Electrical contracting industry
DEPUTY PRESIDENT EASTON	SYDNEY, 8 AUGUST 2022

Application for approval of the Galpern Group Pty Ltd Single Enterprise Agreement 2021.

1. Galpern Group Pty Ltd (the Employer) has made an application for the approval of the Galpern Group Pty Ltd Single Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) claims to be a bargaining representative for the Agreement for the purposes of s.176(b) of the Act, which the Employer disputes. The CEPU did not play any part in the bargaining process but seeks to be heard about the approval as a bargaining representative because it has at least one member who is party to the Agreement.

1. There is no argument that the CEPU has coverage of the employees who have made the Agreement, and that at least one employee is a member of the CEPU. However the Employer relies on “Representation Election Forms” completed by each employee during the bargaining process. The form asked each employee to “indicate preference for representation”. Every employee completed the form and appointed a particular person as their bargaining representative, and almost every employee ticked the “revoke the Union Rights” option.

1. In these circumstances the CEPU is not a bargaining representative as defined in s.176(b) of the Act because each relevant employee has “appointed another person under [s.176(c)] as his or her bargaining representative for the agreement.”

1. The CEPU filed an objection to the approval of the Agreement, which it does not have standing to do. I have nonetheless taken into account the matters raised by the CEPU in their objection.

1. The CEPU’s objection raised matters going to the agreement making process and the Better Off Overall Test (BOOT). The Employer filed a response to the CEPU’s objection. The Employer’s response dealt with the matters raised by the CEPU and the undertakings provided by the Employer are also informed by matters raised in the CEPU’s objection.

1. Significantly more information was provided in the Employer’s response document about the steps taken by the Employer to ensure that the terms of the Agreement and the effect of those terms was explained to relevant employees. Mr Simon Galpern, who is a Director of the Employer, provided a signed statement explaining what occurred. Mr Galpern says that eight employees will be covered by the Agreement, all of whom were emailed a copy of the proposed agreement and a “How and When for Approval Letter” (“Approval Letter”) on 10 May 2022. The Approval Letter set out details of discussion meetings, set out the date on which the vote would take place, together with the method of voting and suggested that employees contact their bargaining representative or the Fair Work Commission Infoline if they had any questions about the proposed agreement.

1. On 11 May 2022 Mr Galpern met employees at four different locations to discuss the proposed agreement. At these meetings Mr Galpern explained the approval process, including that if the proposed agreement was approved by a majority of employees then an application would be made to the Fair Work Commission.

1. Mr Galpern then went through each of the clauses of the proposed agreement by reference to the modern award and says that there was particular employee interest in the following matters:

(a)that most of the entitlements remained the same as what employees were currently entitled to, including wages, hours of work, travel allowance, top up insurance, MERT, annual leave, additional hours and mealtimes;

(b)that RDOs would be taken when sites are shut or by agreement;

(c)sick leave and carer’s leave;

(d)whether any long service leave rights are affected; and

(e)the pay increases provided under the Agreement and also redundancy payments into the MERT fund.

1. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

1. Whilst there were some interpretational differences between the Employer and the CEPU regarding the effect of certain provisions of the underpinning modern award, those differences do not materially affect the assessment of the BOOT – particularly in light of the undertaking provided by the Employer that deals with the CEPU’s substantive concerns.

1. Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

1. I note that Clause 7.7.5 – Public Holidays is potentially inconsistent with the National Employment Standards (NES). Noting the NES precedence clause at Clause 5.8 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 August 2022. The nominal expiry date of the Agreement is 8 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A