Melchor MEP Pty Ltd

[2020] FWCA 887

[2020] FWCA 887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melchor MEP Pty Ltd
(AG2019/4976)

MELCHOR MEP PTY LTD ELECTRICAL SERVICES ENTERPRISE AGREEMENT 2019

Electrical contracting industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 20 FEBRUARY 2020

Application for approval of the Melchor MEP Pty Ltd Electrical Services Enterprise Agreement 2019.

[1] Melchor MEP Pty Ltd has applied for approval of a single enterprise agreement known as the Melchor MEP Pty Ltd Electrical Services Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The Undertakings were not opposed. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] The flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[6] The consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] Pursuant to a Confidentiality Order, the Commission received further information regarding the status of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) as a bargaining representative for the Agreement. Those materials demonstrate that the CEPU was initially a bargaining representative by default and that its status as a bargaining representative ceased on 14 November 2019. Pursuant to the Decision in CFMEU v Collinsville Coal Operations Pty Limited, 1 in these circumstances the CEPU may apply to be covered by the Agreement. The CEPU has given notice under s.183. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 20 February 2020 and, in accordance with s.54, will operate from 27 February 2020. The nominal expiry date of the Agreement is 20 February 2024.

[10] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Annexure A

 1   [2014] FWCFB 7940.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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