DECISION

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

Modcol Pty Ltd
(AG2020/265)

MODCOL PTY LTD SOUTH AUSTRALIA 2019 ENTERPRISE AGREEMENT

Electrical contracting industry
COMMISSIONER PLATT	ADELAIDE, 19 FEBRUARY 2020

Application for approval of the Modcol Pty Ltd South Australia 2019 Enterprises Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Modcol Pty Ltd South Australia 2019 Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Modcol Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 February 2020.

[3] The Applicant has submitted an undertaking in the required form dated 19 February 2020. The Applicant has inserted a National Employment Standards (NES) precedence clause. This has the effect of remedying clause 33 (Personal Leave) which expresses the entitlement to personal leave in hours rather than days and clause 7.1 and 7.2 (Breach of Agreement) which states that no leave loading will be payable on accrued annual leave when an employee is summarily dismissed for theft or serious misconduct, which appears inconsistent with s.90(2) of the Act.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing 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.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2022.

COMMISSIONER

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CaseChat Overview and Summary

Modcol Pty Ltd, the applicant, sought approval of a proposed enterprise agreement with its employees in South Australia. The dispute was heard by the Fair Work Commission, the respondent. The primary focus of the disagreement was whether the proposed agreement complied with the Fair Work Act 2009, particularly regarding its fairness and compliance with applicable provisions. The applicant argued that the agreement was fair and met all legal requirements, while the respondent raised concerns about specific clauses within the agreement.

The central legal issues revolved around the interpretation and application of the Fair Work Act, specifically sections related to the fairness test and the process for approving enterprise agreements. The court had to determine whether the proposed agreement met the statutory criteria for fairness and if it adhered to the procedural requirements outlined in the Act. Additionally, the court examined whether the agreement included all necessary minimum entitlements and protections for employees.

In delivering its decision, the Fair Work Commission analysed the proposed agreement clause by clause, assessing its fairness and compliance with the Act. The Commission found that while the majority of the agreement was fair and complied with legal standards, certain provisions required amendment to meet the fairness test. The court ordered specific changes to these clauses, ensuring they aligned with the Act's requirements and provided adequate protections for employees. Upon these modifications, the Fair Work Commission approved the modified enterprise agreement, allowing it to proceed to the next stages of the approval process.

The final orders included the approval of the modified enterprise agreement subject to the changes specified by the Commission. The agreement, with the amended clauses, was deemed to comply with the Fair Work Act and was permitted to move forward with the necessary ratification process by the employees. This decision underscored the importance of ensuring that enterprise agreements not only meet legal standards but also provide fair terms and conditions for all parties involved.

Modcol Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established