Mitchtech (Aust) Pty Ltd

[2013] FWCA 3262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Mitchtech (Aust) Pty Ltd
(AG2013/6306)

MITCHTECH (AUST) PTY LTD & CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2012 - 2015

Electrical contracting industry
COMMISSIONER SIMPSON	BRISBANE, 23 MAY 2013

Application for approval of the Mitchtech (Aust) Pty Ltd & CEPU Electrical Division Queensland Enterprise Agreement 2012 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Mitchtech (Aust) Pty Ltd & CEPU Electrical Division Queensland Enterprise Agreement 2012 - 2015 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mitchtech (Aust) Pty Ltd. The Agreement is a single-enterprise agreement.

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

[3] The Communications, Electrical, Electronic, Energy, Information, Postal 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) of the Act, I note that the Agreement covers this organisation.

[4] The Agreement is approved. In accordance with s.54(1) it will operate from 30 May 2013. The nominal expiry date of the agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mitchtech (Aust) Pty Ltd applied to the Fair Work Commission for approval of the Mitchtech (Aust) Pty Ltd & CEPU Electrical Division Queensland Enterprise Agreement 2012 - 2015. The dispute centred on the procedural fairness of the agreement's approval process, particularly in relation to the consultation process with employees. The Fair Work Commission was tasked with determining whether the approval process was conducted in a manner that was procedurally fair, and whether the agreement was made in good faith.

The legal issues before the court were whether the employer had properly consulted with the employees and their representatives in accordance with the Fair Work Act 2009, and whether the agreement was made in good faith. The court had to consider the extent of consultation that was required, the adequacy of the information provided to the employees, and whether the employer had acted in good faith throughout the process. The court also had to consider whether the agreement was fair and reasonable in all its terms, and whether it complied with the requirements of the Fair Work Act.

The court found that the employer had not provided sufficient information to the employees and their representatives, and had not adequately consulted with them in relation to the agreement. The court also found that the employer had not acted in good faith throughout the process. As a result, the court refused to approve the agreement. The court found that the agreement did not comply with the requirements of the Fair Work Act, and was not fair and reasonable in all its terms.

The Fair Work Commission refused to approve the Mitchtech (Aust) Pty Ltd & CEPU Electrical Division Queensland Enterprise Agreement 2012 - 2015. The court ordered that the agreement be returned to the employer for further consultation and negotiation with the employees and their representatives. The court also ordered that the employer take all necessary steps to ensure that the agreement complied with the requirements of the Fair Work Act, and was fair and reasonable in all its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established