DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Leemark Fire Protection Pty Ltd
(AG2021/4782)

LEEMARK FIRE PROTECTION PTY LTD AND ETU ENTERPRISE AGREEMENT 2020 – 2021

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 MAY 2021

Application for approval of the Leemark Fire Protection Pty Ltd and ETU Enterprise Agreement 2020 – 2021.

[1] Leemark Fire Protection Pty Ltd has made an application for approval of an enterprise agreement known as the Leemark Fire Protection Pty Ltd and ETU Enterprise Agreement 2020 – 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] The employer has provided written undertakings, a copy of which 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 they will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[5] 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 4 May 2021 and, in accordance with s 54, will operate from 11 May 2021. The nominal expiry date of the Agreement is 1 September 2021.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Leemark Fire Protection Pty Ltd and ETU Enterprise Agreement 2020-2021. The applicant, Leemark Fire Protection Pty Ltd, sought the approval of the agreement to ensure it met the requirements under the Fair Work Act 2009. The dispute centred on whether the agreement provided for the fair and reasonable terms and conditions for employees within the enterprise, including pay rates, working hours, and other employment terms. The Fair Work Commission was tasked with assessing the fairness of the agreement, particularly whether it complied with the provisions of the Act and any relevant industrial instruments.

The primary legal issues before the Commission were whether the enterprise agreement contained appropriate provisions for employees' terms and conditions, and whether it adhered to the statutory requirements outlined in the Fair Work Act. Specifically, the Commission had to consider if the agreement provided for minimum wages and conditions, ensured procedural fairness in its creation, and complied with the good faith bargaining requirements. The applicant argued that the agreement was fair and reasonable, while the objectors contended that certain terms were not adequately addressed or were unfair.

In delivering its decision, the Commission examined the provisions of the agreement against the statutory framework. It considered the evidence provided by both parties, including submissions on the fairness of the terms and conditions. The Commission found that the agreement did indeed provide for the minimum wages and conditions required by law and that the bargaining process was conducted in good faith. The Commission also determined that the procedural fairness was maintained throughout the creation of the agreement. Therefore, the Commission approved the agreement, finding that it met the necessary criteria under the Fair Work Act.

The Fair Work Commission approved the Leemark Fire Protection Pty Ltd and ETU Enterprise Agreement 2020-2021, confirming its compliance with the statutory requirements. The decision highlights the importance of ensuring that enterprise agreements provide fair and reasonable terms and conditions for employees, while also adhering to the procedural and substantive fairness requirements set out in the Fair Work Act.

Leemark Fire Protection Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established