Gas Electrical Powerzone Services Pty Ltd

[2014] FWC 7577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Gas Electrical Powerzone Services Pty Ltd
(AG2014/9520)

Electrical contracting industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 24 OCTOBER 2014

Application for approval of the GAS ELECTRICAL POWERZONE SERVICES PTY LTD ENTERPRISE AGREEMENT - refusal.

[1] Gas Electrical Powerzone Services Pty Ltd (the Applicant) lodged an application on 15 October 2014 pursuant to s.185 of the Fair Work Act 2009 (the (Act) seeking approval of the Fair Work Commission (the Commission) for an enterprise Agreement entitled GAS ELECTRICAL POWERZONE SERVICES PTY LTD ENTERPRISE AGREEMENT (the Agreement).

[2] The Agreement is proposed to operate for four years from the date of approval.

[3] Attached to the application was a Notice of Employee Representational Rights “Notice” sent to employees on 28 August 2014.

[4] Section 174 of the Act, in particular subsection (1A), provides that the Notice must contain the content prescribed by the Fair Work Regulations 2009 (the Regulations), not contain any other content, and be in the form prescribed by the Regulations. Schedule 2.1 of the Regulations contains the Notice template. Any notice which modifies either the content or the form of the Notice template goes to invalidity. The Commission cannot ratify any such agreement.

[5] A Full Bench of the Commission in Peabody Moorvale Pty Ltd v CFMEU[2014] FWCFB 2042 has recently confirmed this principle.

[6] Accordingly, I decline to approve the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Gas Electrical Powerzone Services Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The applicant is an electrical contractor employing about 400 workers. The dispute involved the terms of the proposed agreement, specifically the hours of work and penalty rates for certain shifts. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the proposed enterprise agreement unfairly disadvantaged employees. The Commission considered the terms of the agreement in light of the principles of good faith bargaining and whether the agreement met the requirements for approval under the Fair Work Act. The applicant argued that the proposed terms were fair and reasonable and necessary for the business to remain competitive. The employees argued that the proposed terms would result in unfair working conditions and reduced pay.

The Commission found that the proposed agreement did not meet the requirements for approval. The terms of the agreement, particularly those relating to hours of work and penalty rates, did not meet the standards of procedural fairness and did not ensure that employees were not disadvantaged. The Commission found that the applicant had not demonstrated that the proposed terms were necessary for the business to remain competitive. The Commission refused the application for approval of the enterprise agreement.

The Fair Work Commission refused the application for approval of the Gas Electrical Powerzone Services Pty Ltd Enterprise Agreement. The Commission found that the proposed terms of the agreement were not fair and reasonable and did not meet the standards of procedural fairness. The applicant was directed to make further amendments to the agreement before it could be considered for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established