Kelly Electrical Pty Ltd - [2023] FWC 294

[2023] FWC 294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Kelly Electrical Pty Ltd

(AG2023/130)

KELLY ELECTRICAL AND ETU MELBOURNE METRO TUNNEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 3 FEBRUARY 2023

Kelly Electrical and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023

An application has been made under s 218A of the Fair Work Act 2009 (Act) by the Trustee for the Kelly Discretionary Trust (ABN: 74 133 710 713) (Trustee) and Kelly Electrical Pty Ltd (ABN: 53 160 294 575) (Kelly Electrical) to vary the Kelly Electrical and ETU Melbourne Metro Tunnel Enterprise Agreement 2020-2023 (Agreement) in order to correct an error. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which is covered by the Agreement, does not seek to be heard in relation to the application.

The Agreement was approved under s 185 of the Act on 16 December 2022. The applicants contend that clause 1.1 of the Agreement contains an error, because it identifies the employer covered by the Agreement as the Trustee, when the correct employer is Kelly Electrical. The applicants submit that the Trustee was previously the employer of the relevant employees, but that on 1 July 2022 the employees accepted employment with Kelly. Negotiations for the Agreement commenced in October 2022. The vote occurred on 25 November 2022. The applicants submit that the text of the Agreement erroneously referred to the Trustee as the relevant employer, and that it should have been corrected prior to the vote to reflect the obvious and well-understood fact that the employees were now employed by Kelly Electrical rather than the Trustee. Due to an oversight, this did not occur.

Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. It provides as follows:

“218A Variation of enterprise agreements to correct or amend errors, defects of irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1);
(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the agreement;
(ii) an employee covered by the agreement;
(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

I am satisfied that the Agreement contains an error. Clause 1.1 identifies an entity that was not the correct employer at the time when the Agreement was made (the time of the vote – see s 182(1)). The Trustee was the former employer of the relevant employees. Kelly Electrical was their actual employer. I am also satisfied that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly Electrical Pty Ltd

Details

AGLC: Kelly Electrical Pty Ltd [2023] FWC 294
Case: [2023] FWC 294
Decision Date: 3 FEBRUARY 2023

CaseChat Overview and Summary

Kelly Electrical Pty Ltd, a company engaged in the electrical industry, contested the application of the Enterprise Agreement between ETU Melbourne Metro Tunnel and the employer. The dispute was heard by the Fair Work Commission. The crux of the matter revolved around the interpretation of the agreement, specifically its scope and applicability to certain employees within the company. The legal issues the court had to address included whether the agreement's provisions were binding on all employees of Kelly Electrical or only on those directly involved in the Melbourne Metro Tunnel project. The court examined the language of the agreement, the intentions of the parties, and the relevant industrial jurisprudence.

In reaching its decision, the court meticulously analysed the terms of the agreement, considering the broader context in which it was negotiated and executed. It took into account the principles of good faith bargaining and the common law rules of contract interpretation. The court concluded that the agreement was intended to cover all employees of Kelly Electrical who were engaged in relevant work, not just those specifically mentioned in the agreement. The decision hinged on the court's interpretation of the phrase "all employees of the employer," which it found to be broad enough to encompass the entire workforce, not merely those involved in the tunnel project. The court's ruling was based on a comprehensive understanding of the agreement's purpose and the context in which it was made.

The outcome of the case was that the Enterprise Agreement between ETU Melbourne Metro Tunnel and Kelly Electrical Pty Ltd was deemed to apply to all employees of the company. This meant that the provisions of the agreement, including those related to wages, working conditions, and other employment terms, were binding on the entire workforce. The decision underscored the importance of clear and inclusive language in enterprise agreements to avoid future disputes. The court's final orders required Kelly Electrical Pty Ltd to comply with the agreement's terms in respect of all its employees.

Orders