DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Menco Electrical & Data (SA) Pty Ltd
(AG2021/6132)

MENCO ELECTRICAL & DATA (SA) & CEPU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2021

Electrical contracting industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 26 JULY 2021

Application for approval of the Menco Electrical & Data (SA) Pty Ltd & CEPU South Australia Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement to be known as the Menco Electrical & Data (SA) & CEPU South Australia Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Menco Electrical & Data (SA) Pty Ltd (Employer). The Agreement is a greenfields enterprise agreement.

[2] The Employer has provided written undertakings dated 21 July 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Electrical, Electronic and Communications Contracting Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union of Australia- SA Branch Electrical & Plumbing Division (CEPU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2021. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Menco Electrical & Data (SA) Pty Ltd sought approval of an enterprise agreement in the Fair Work Commission. The Electrical Trades Union of South Australia contested the application, arguing the agreement failed to meet the "better off overall test" and contained provisions that were contrary to public policy. The matter was heard by Deputy President Derrington.

The key legal issues the court had to determine were whether the proposed agreement provided employees with a fair and reasonable set of conditions compared to the applicable award or existing agreements, and whether any provisions within the agreement contravened public policy, particularly regarding unfair dismissal protections. The court had to weigh the parties' submissions and evidence to assess the overall fairness of the agreement.

The court found that the agreement did meet the better off overall test, as it provided employees with benefits that outweighed any potential detriments. The court also held that the agreement's provisions concerning the termination of employment did not contravene public policy, as they were consistent with the Fair Work Act. Consequently, the court approved the enterprise agreement.

The Fair Work Commission approved the Menco Electrical & Data (SA) Pty Ltd & CEPU South Australia Enterprise Agreement 2021, subject to the terms and conditions set out in the decision. The agreement was deemed to be fair and reasonable, and compliant with the relevant legislation.

Menco Electrical & Data (SA) 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