Jemena Asset Management Pty Ltd

[2014] FWCA 3892

The attached document replaces the document previously issued with the above code on 12 June 2014.

The full name of the agreement is inserted into the preamble and in paragraph [1]. The word “Enterprise” was previously omitted.

Abbygayle Lang

Associate to Deputy President Gostencnik

Dated 19 June 2014.

[2014] FWCA 3892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Jemena Asset Management Pty Ltd
(AG2014/5905)

JEMENA ASSET MANAGEMENT - ETU VICTORIAN ELECTRICITY ENTERPRISE AGREEMENT 2013

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 JUNE 2014

Application for approval of the Jemena Asset Management - ETU Victorian Electricity Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Jemena Asset Management - ETU Victorian Electricity Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jemena Asset Management Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The notice of employee representational rights issued by the Applicant to employees of Jemena Asset Management Pty Ltd did not strictly comply with the prescribed form as required under s. 174 of the Act. This is because it referred to “Fair Work Australia” instead of “Fair Work Commission”. It is obvious that the Applicant had used the form approved prior to 1 January 2013. I am however satisfied that s. 25B of the Acts Interpretation Act 1901 applies to the notice with the consequence that reference to “Fair Work Australia” is taken to be of reference to “Fair Work Commission”. The provisions of s. 174 do not express a contrary intention which would have the result that s. 25B not apply. In the circumstances I am also satisfied the issuing of the notice in the form pre-2013 did not have any effect on the employee’s rights to appoint a bargaining representative.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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.

[7] The Agreement was approved on 12 June 2014 and, in accordance with s.54, will operate from 19 June 2014. The nominal expiry date of the Agreement is 31 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Jemena Asset Management Pty Ltd was the subject of an application for the approval of the Jemena Asset Management-ETU Victorian Electricity Enterprise Agreement 2013. The application was made by Jemena Asset Management, with the Electrical Trades Union (ETU) acting as the employee representative. The application was heard in the Fair Work Commission. The central issue before the court was whether the terms of the proposed enterprise agreement were in compliance with the requirements of the Fair Work Act 2009 and whether they were fair and reasonable for the employees involved.

The court examined various aspects of the proposed agreement, including the provisions relating to wages, conditions of employment, and other benefits. It was necessary to determine whether the agreement provided adequate protections for employees and whether it met the criteria for being considered a "better off overall test" (BOOT) agreement. The court also considered whether the agreement was consistent with relevant industrial awards and whether it contained any unfair or unreasonable terms.

In its decision, the Fair Work Commission found that the proposed enterprise agreement was fair and reasonable for the employees. The court concluded that the agreement met the requirements of the Fair Work Act and provided adequate protections for the employees. The commission determined that the agreement was a BOOT agreement, as it offered employees a combination of wage increases, improved working conditions, and other benefits that were considered better than what they would receive under the applicable industrial awards. The court approved the agreement, finding it to be in compliance with the relevant legislation and fair for the employees involved.

The final orders of the Fair Work Commission included the approval of the Jemena Asset Management-ETU Victorian Electricity Enterprise Agreement 2013, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The court's decision provided certainty and stability for both Jemena Asset Management and the ETU in relation to the terms and conditions of employment for the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established