MEC Electrical Solutions (Qld) PtyLtd

[2024] FWCA 2133

[2024] FWCA 2133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

MEC Electrical Solutions (Qld) PtyLtd

(AG2024/1184)

MEC ELECTRICAL SOLUTIONS (QLD) PTY LTD

Electrical contracting industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 11 JUNE 2024

Application for approval of the MEC Electrical Solutions (QLD) Pty Ltd Enterprise Agreement 2024 – 2028

1. An application has been made for approval of an enterprise agreement known as the MEC Electrical Solutions (QLD) Pty Ltd Enterprise Agreement 2024-2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MEC Electrical Solutions (QLD) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. Additionally, the NERR distributed to employees appears to have included the Applicant’s letterhead, raising the issue of its compliance with the prescribed form required by s. 174(1A) of the Act. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. I raised a number of concerns with the Applicant initially by correspondence on 18 April 2024. Those concerns related to part time hours of work in excess of agreed hours and minimum period of engagement, overtime and public holiday penalties for casual employees, work performed during meal breaks and reconciliations where a higher rate of pay is provided in lieu of other benefits. The Applicant provided submissions and a number of undertakings on 23 April 2024 which satisfied my concerns. I subsequently raised further concerns about the lack of pay rates after the commencement of the Agreement. Further submissions were made and a further undertaking offered.

1. I held concerns about genuine agreement given, inter alia, the small number of employees involved in the making of the Agreement and I listed the matter for a brief mention by telephone on 30 April 2024.

1. Following the mention, the Applicant provided further information about the proposed agreement that was put to workers prior to voting.

1. On 2 May 2024, my Chambers issued further directions. Notably, I listed the matter for hearing on 3 June 2024 and I directed the Applicant to file further material in relation to:

a.   its compliance with the Statement of Principles on Genuine Agreement (SOP), including but not limited to SOP No. 17; and

b.   its explanation in relation to the table outlining rates of pay within the Agreement, given they provided for future rates of pay but had been left blank.

1. On 15 May 2024, the Applicant filed further material. The Applicant’s provided detailed submissions on the background to the Agreement, the process for the making of the Agreement and its purpose.[2]

1. The Applicant made submissions on the relevant classification of each employee covered by the agreement.

1. The Applicant also made submissions in relation to the Statement of Principles with respect to Genuine Agreement and the extent of engaging employees across the full range of classifications.

1. Among various contentions in the Applicant’s written submissions, the Applicant submitted:

a.   The SOPs should be applied so as to provide genuine opportunities for employment and advancement of workers under the same enterprise agreement;

b.   It is disadvantaged by virtue of their size such that a narrow reading of the SOPs would render the Applicant ‘effectively excluded from making an agreement’;

c.   That certain classifications in the reference instrument and casual and part-time employees were ‘not greatly engaged in the electrical contracting industry’

d.   That the Applicant was not in a position to engage more employees across the classification types and employment categories and that the ‘the parties can do little more than they have done’;

e. That a narrow reading of the SOPs is not required, with reference to s188(1) of the Act and its wording requiring the Commission must ‘take into account’ the SOPs;

f.    That the Commission should take the approach of considering, given the circumstances, whether it is satisfied there has been genuine agreement; and

g.   That it was within the Commission’s scope to determine that the parties had done what they could in the circumstances to meet the SOPs.

1. At the hearing, the Applicant employer’s director, Mr Mark Dell, gave evidence supporting the submissions made, about the history of the organisation as it pertains to the making of the Agreement and who would be covered by the Agreement, which I accept. Further evidence was given by the parties involved in making the Agreement which included the history of the company and its future direction.

Consideration

1. I accept the evidence that was provided, and I am satisfied that the Agreement was made consistently with the Act, that it was genuinely agreed and that those involved had a sufficient interest. At the hearing I also explored further the undertakings in respect of the future pay and allowance increases.

1. The Applicant has provided written undertakings.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. 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.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[3] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

·   Clause 30 – Compassionate Leave.

·   Clause 35.6 – Public Holidays (substitution).

However, noting clause 6.2 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.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 April 2028.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Applicant Submissions, [1].

[3] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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