JCL Electrics Pty Ltd

[2024] FWCA 2925

[2024] FWCA 2925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

JCL Electrics Pty Ltd

(AG2024/2691)

JCL ELECTRICS PTY LTD SINGLE ENTERPRISE AGREEMENT 2024

Electrical contracting industry
COMMISSIONER PERICA	MELBOURNE, 9 AUGUST 2024

JCL Electrics Pty Ltd Single Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the JCL Electrics Pty Ltd Single Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

Delegates’ Rights Term

1. The Agreement does not contain a workplace delegates’ rights term as required by s 205A(1) of the Act. Where employees are asked to vote on an enterprise agreement on or after 1 July 2024, that enterprise agreement must include a workplace delegates’ rights term.

1. The agreement was made on 17 July 2024. It was negotiated during the period where the Act did not require a delegate’s rights term within an Agreement and voted on after the law required it.

1. Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

1. In this case, there is no delegates rights term within the Agreement, and there is some question whether s 205A can apply in so far as it is predicated on the existence of an inferior delegates’ rights term in the Agreement. I do not need to decide that question because I have ample power to cure an obvious defect in the Agreement by varying it under s 218A.

1. Section 218A(1) allows the Commission to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I conducted a mention on 2 August 2024 to hear from the Employer on this issue. The applicant here is a victim of circumstance. The law changed to require the insertion of a delegates’ rights term between the negotiation of the Agreement and the vote. I am satisfied I have power under s 218A to amend the Agreement by inserting the delegates’ rights term of the relevant award, the Electrical, Electronic and Communications Contract Award 2020. I will therefore insert the delegates’ rights term which is clause 26A of that Award.

1. The variation pursuant to s 218A will operate from 16 August 2024.

1. The Agreement is approved today 9 August 2024. It will operate from 16 August 2024 as required by section 54 of the Act. The nominal expiry date is 31 March 2027.

COMMISSIONER

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