Jenkins Electrics Pty Ltd T/A O’Brien Electrical Engineering and Contractors Ballarat Summary

[2021] FWCA 6115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jenkins Electrics Pty Ltd T/A O’Brien Electrical Engineering and Contractors Ballarat

(AG2021/7568)

O’Brien Electrical Engineering and ContractorsBallarat Enterprise Agreement 2021 -2025

Electrical contracting industry
COMMISSIONER O’NEILL	MELBOURNE, 6 OCTOBER 2021

Application for approval of the O’Brien Electrical Engineering and Contractors Ballarat Enterprise Agreement 2021 -2025

O’Brien Electrical Engineering and Contractors Ballarat has applied for approval of an enterprise agreement known as the O’Brien Electrical Engineering and Contractors Ballarat Enterprise Agreement 2021 -2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 7.1.7 – Annual Leave; and
· Clause 7.7.4 – Public Holidays.

However, noting clause 5.11.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 October 2021. The nominal expiry date of the Agreement is 5 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Jenkins Electrics Pty Ltd trading as O’Brien Electrical Engineering and Contractors Ballarat, sought approval for the O’Brien Electrical Engineering and Contractors Ballarat Enterprise Agreement 2021-2025. The matter was heard in the Fair Work Commission, which has jurisdiction under the Fair Work Act 2009 to approve, modify, and register enterprise agreements.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act. This involved assessing whether the agreement was made in good faith, whether it contained only matters that are negotiable and not compulsory, and whether it complied with the procedural requirements such as adequate consultation and proper notification to employees.

The Commission found that the agreement was made in good faith and contained only negotiable matters, as evidenced by the extensive consultation process undertaken by the employer. The employer had engaged in multiple meetings with employee representatives, provided detailed information about the agreement's provisions, and allowed for employee feedback. The procedural requirements were also met, with the Commission satisfied that employees were adequately notified and had an opportunity to review and discuss the proposed agreement. Given these findings, the Commission approved the agreement, noting that it contained fair and reasonable terms for the employees involved.

The Commission made orders approving the O’Brien Electrical Engineering and Contractors Ballarat Enterprise Agreement 2021-2025 as it was presented, subject to its registration by the Registrar of the Fair Work Commission. The employer was directed to take all necessary steps to ensure the agreement was registered and provided to the Commission within the specified timeframe.

Jenkins Electrics Pty Ltd T/A O’Brien Electrical Engineering and Contractors Ballarat

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established