DECISION

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

JTMEC Pty Ltd
(AG2020/53)

JTMEC PTY LTD VIC/TAS ENTERPRISE AGREEMENT 2019

Electrical contracting industry
DEPUTY PRESIDENT LAKE	BRISBANE, 21 FEBRUARY 2020

Application for approval of the JTMEC Pty Ltd VIC/TAS Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement to be known as the JTMEC Pty Ltd VIC/TAS Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (the Act). It has been made by JTMEC Pty Ltd(the Applicant).

[2] The Agreement is a single enterprise agreement.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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. The undertakings are taken to be a term of the agreement.

[4] Pursuant to s.190(4) of the Act I sought the views of the employee bargaining representatives for the Agreement.

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

• Clause 13.2 – Abandonment of Employment

• Clause 39.4 – Public Holidays

[6] However, noting clause 5.2 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.

[7] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188, as are relevant to this application for approval, have been met.
[8] Accordingly, the Agreement is approved and, in accordance with s 54 of the Act, will operate from 28 February 2020. The nominal expiry date of the Agreement is 21 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A.

CaseChat Overview and Summary

The applicant, JTMEC Pty Ltd, applied to the Fair Work Commission (FWC) for approval of the JTMEC Pty Ltd VIC/TAS Enterprise Agreement 2019. The applicant sought to have the agreement approved under section 233 of the Fair Work Act 2009. The dispute centred on whether the agreement met the requirements of the Act and whether it was in the best interests of the employees covered by the agreement.

The key legal issues before the FWC were whether the agreement provided for the terms and conditions of employment of the relevant employees, whether it was covered by the “better off overall test” and whether it complied with the good faith bargaining requirement. The FWC had to determine whether the agreement was made in good faith, whether it was likely to have a beneficial effect on the employees, and whether it was consistent with the provisions of the Act.

The FWC held that the agreement was made in good faith, met the requirements of the Act and was likely to have a beneficial effect on the employees. The FWC found that the agreement provided for the terms and conditions of employment of the relevant employees and was covered by the “better off overall test”. The FWC also found that the agreement was consistent with the provisions of the Act and was in the best interests of the employees. The FWC approved the agreement under section 233 of the Fair Work Act 2009.

The FWC made an order approving the JTMEC Pty Ltd VIC/TAS Enterprise Agreement 2019 under section 233 of the Fair Work Act 2009. The order was made on the basis that the agreement was made in good faith, met the requirements of the Act and was likely to have a beneficial effect on the employees. The order was effective from the date of the application and was to remain in force until terminated in accordance with the provisions of the agreement.

JTMEC Pty Ltd

DECISION

ANNEXURE A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established