MG Electrical Pty Ltd T/A MG Electrical Summary

[2013] FWCA 6744

The attached document replaces the document previously issued with the above code on 9 September 2013.

The name of the Agreement stated in the Decision’s heading now matches that contained as part of the Decision proper.

Alishan Megerdichian

Associate to Vice President Lawler

Dated 9 September 2013

[2013] FWCA 6744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MG Electrical Pty Ltd T/A MG Electrical
(AG2013/7973)

MG ELECTRICAL SERVICES PTY LTD ENTERPRISE AGREEMENT 2013 - 2017

Northern Territory
VICE PRESIDENT LAWLER	SYDNEY, 9 SEPTEMBER 2013

Application for the approval of the MG Electrical Services Pty Ltd Enterprise Agreement 2013 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Application for the approval of the MG Electrical Services Pty Ltd Enterprise Agreement 2013 - 2017 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the MG Electrical Pty Ltd trading as MG Electrical. The Agreement is a single-enterprise agreement.

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

[3] One matter deserves comment. Clauses 16.2 and 16.3 contemplates that an employee engaged in remote work may be required to work up to 84 hours per week and that such hours are declared to be reasonable. I had a concern that these provisions were an impediment to certification because a requirement that overtime be worked such as to bring working hours to 84 hours per week may not in fact be reasonable. In the end, I was persuaded that the agreement should be approved notwithstanding these clauses. First, the work in question relates to remote work in the Northern Territory where travelling time is included in the total hours. Employees typically do not want to remain in the remote work location longer than is necessary and they generally prefer to undertake those sort of travelling and working hours rather than remain absent from home for longer period. Second, and more importantly, clause 16.4 provides:

“16.4 Any requirement that an individual employee might have to establish or enforce their rights under section 62 of the Fair Work Act will be paramount.”

[4] That clause has the effect of making clauses 16.2 and 16.3 subordinate to the provisions of s.62. In effect, an employee is entitled to decline to work unreasonable overtime in accordance with s.62 of the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 September 2013. The nominal expiry date of the Agreement is 15 September 2016.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, MG Electrical Pty Ltd, trading as MG Electrical, sought approval of the MG Electrical Services Pty Ltd Enterprise Agreement 2013 - 2017. The application for approval arose from the need to ensure the agreement complied with the relevant industrial legislation. The Commission was tasked with examining whether the agreement met the necessary statutory requirements for approval.

The central legal issues before the Commission were whether the agreement had been made in good faith, and whether it contained the mandated minimum terms and conditions of employment as stipulated by the Fair Work Act 2009. Additionally, the Commission considered whether the agreement was appropriately certified by the relevant independent body, as required by the legislation.

After reviewing the evidence and submissions, the Commission found that the agreement was made in good faith and contained all the necessary minimum terms and conditions. The certification by the independent body was also found to be valid. Consequently, the Commission approved the MG Electrical Services Pty Ltd Enterprise Agreement 2013 - 2017. The decision ensured that the agreement would be binding and enforceable under the Fair Work Act.

MG Electrical Pty Ltd T/A MG Electrical

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established