J A Martin Electrical Pty Ltd Summary

[2013] FWCA 1426

FAIR WORK COMMISSION

DECISION

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

J A Martin Electrical Pty Ltd
(AG2013/4642)

J.A. MARTIN NEWCASTLE & HUNTER VALLEY TRADES ENTERPRISE AGREEMENT 2012

Electrical contracting industry
COMMISSIONER BULL	SYDNEY, 7 MARCH 2013

Application for approval of the J.A. Martin Newcastle & Hunter Valley Trades Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the J.A. Martin Newcastle & Hunter Valley Trades Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] A conference before the Commission was held, following which the Applicant provided a number of undertakings.

[3] An undertaking with respect to clause 21 - Annual leave, and in particular subclause 21.10, cashing out of annual leave, has been provided by the Applicant.

[4] The relevant modern award for the purposes of the better off overall test is the Electrical, Electronic and Communications Contracting Award 2010 (the Award). The Award provides that the ordinary hours of work for day workers is Monday to Friday within a 6:00am to 6:00pm spread, provided that the span of hours may be altered by agreement. For continuous and non-continuous shift workers the Award at clause 24.10 and clause 24.11 does not limit the span of ordinary hours. The Agreement for approval makes no reference to a span of ordinary hours.

[5] The Applicant and its representative have advised the Commission that for the purposes of this Agreement all employees are non-continuous shift workers. An undertaking with respect to clause 5 - Scope and application of agreement, and in particular, the employee coverage, has been provided by the Applicant.

[6] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[7] The Agreement covers the employer’s electrical staff within the definitions at Schedule C of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[8] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 14 March 2013. The nominal expiry date of the Agreement is 15 January 2016.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by J A Martin Electrical Pty Ltd for the approval of the J.A. Martin Newcastle & Hunter Valley Trades Enterprise Agreement 2012. The applicant sought to have the agreement registered under the Fair Work Act 2009, with the respondents being several unions representing the employees. The dispute centred around the procedural fairness of the agreement, specifically whether the applicant had complied with the requirements for genuine agreement and adequate consultation.

The central legal issues before the Commission were whether the applicant had genuinely agreed to the terms of the enterprise agreement and whether the applicant had adequately consulted with the employees' representatives. The unions argued that the applicant had not genuinely agreed to the terms, and that the consultation process had been insufficient. The Commission considered the evidence and submissions from both parties to determine if the applicant had complied with the legal obligations.

The Fair Work Commission found that the applicant had genuinely agreed to the terms of the enterprise agreement and had adequately consulted with the employees' representatives. The Commission considered the evidence and submissions from both parties, including the applicant's efforts to consult with the unions and the unions' responses. The Commission was satisfied that the applicant had taken reasonable steps to reach a genuine agreement and had consulted with the unions in good faith. Accordingly, the Commission approved the enterprise agreement.

As a result, the Fair Work Commission approved the J.A. Martin Newcastle & Hunter Valley Trades Enterprise Agreement 2012. The applicant was directed to take all necessary steps to ensure the agreement was brought into effect and to provide a copy of the approved agreement to the Commission. The unions were directed to take all necessary steps to ensure the agreement was brought to the attention of their members.

J A Martin Electrical Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established