National Electrical and Communications Association

[2013] FWCA 3768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Electrical and Communications Association
(AG2013/6646)

DCS WA PTY LTD ENTERPRISE AGREEMENT 2013

Electrical contracting industry
DEPUTY PRESIDENT MCCARTHY	PERTH, 27 JUNE 2013

Application for approval of the DCS WA Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the DCS WA Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). 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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of approval.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the National Electrical and Communications Association (NECA) and DCS WA Pty Ltd, the Fair Work Commission was tasked with determining the approval of the Enterprise Agreement 2013. NECA, as the representative of the employees, sought to ensure the agreement met the legal standards and requirements under the Fair Work Act 2009. DCS WA Pty Ltd, the employer, aimed to establish terms and conditions that were fair and reasonable for both parties. The legal issues before the court encompassed whether the agreement complied with the provisions of the Fair Work Act, particularly focusing on the substantive requirements that must be met for an enterprise agreement to be approved. This included examining if the agreement provided for minimum terms and conditions, whether it was free from prohibited content, and if it had been genuinely bargained.

The Fair Work Commission, in its decision, meticulously evaluated the agreement against the statutory benchmarks. The court found that the agreement contained provisions that did not align with the minimum terms and conditions set out in the Fair Work Act, specifically regarding penalty rates for work on public holidays and overtime. The court also noted that the agreement failed to adequately address the requirements for genuine bargaining. Despite these shortcomings, the Commission recognised the efforts made by both parties to negotiate and reach an agreement. Ultimately, the court concluded that while the agreement demonstrated good faith negotiations, it did not fully comply with the legislative requirements. Consequently, the court did not grant approval for the agreement.

The final orders of the court required DCS WA Pty Ltd and NECA to revise the agreement to ensure compliance with the Fair Work Act. The court mandated that the revised agreement must explicitly include the minimum terms and conditions, address the genuine bargaining requirement, and rectify the deficiencies identified in the original agreement. The court scheduled a follow-up hearing to review the revised agreement and determine its approval in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established