National Electrical and Communications Association v Electrotechnology Industry Group Training Company Ltd
[2022] FWCFB 3
•25 JANUARY 2022
| [2022] FWCFB 3 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
National Electrical and Communications Association
v
Electrotechnology Industry Group Training Company Ltd
(C2021/6976)
VICE PRESIDENT HATCHER | SYDNEY, 25 JANUARY 2022 |
Appeal against decision [2021] FWCA 6239 of Commissioner Johns at Sydney on 12 October 2021 in matter number AG2021/6704.
[1] On 21 December 2021 we issued a decision 1 in which we granted permission to appeal and upheld an appeal brought by the National Electrical and Communications Association (NECA) against the decision of Commissioner Johns to approve the ETU and Electrogroup Group Training Apprentice Enterprise Agreement 2021-20222(Agreement). In the same decision, we proceeded to re-determine the application made by the Electrotechnology Industry Group Training Company Ltd (EIGT) for approval of the Agreement. We concluded (at paragraph [66]) that the Agreement met the requirements for approval in ss 186 and 187 of the Fair Work Act 2009 (FW Act) as are relevant to the application, on the basis of our acceptance of the same undertakings which were made by EIGT at first instance except, in relation to the “genuinely agreed” approval requirement in s 186(2)(a), we identified two specific concerns. In relation to these concerns, we said in our decision that we would provide EIGT with an opportunity to provide further evidence and submissions to address these concerns and, in the alternative, we set out a number of undertakings which we considered, on a provisional basis, would address our concerns. At the conclusion of the decision, we made directions to allow EIGT to provide further evidence and submissions and/or to propose further undertakings, and to allow the other parties to respond.
[2] EIGT stated, in a submission filed on 7 January 2022, that it provided the undertakings which it had originally provided at first instance and, in addition, provided the additional undertakings set out in our 21 December 2021 decision to address the concerns which we identified. A consolidated copy of these undertakings was filed by EIGT, which was signed by Mr Robert Carcary, the Chief Executive and director of EIGT, and dated 4 January 2022. 3 EIGT submitted that these undertakings addressed the Commission’s concerns and should be accepted under s 190(2) of the FW Act, and that the Agreement should be approved on that basis.
[3] The only employee bargaining representative for the Agreement, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), said in a short submission filed on 14 January 2022 that it supported the submissions and undertakings filed by EIGT. The NECA advised on 14 January 2022 that it did not wish to make any submissions in response to the further material filed by EIGT.
[4] We are satisfied pursuant to s 190(3) of the FW Act that the undertakings provided by EIGT dated 4 January 2022, which are attached as Annexure A to this decision, will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. We are further satisfied that the undertakings address the concerns identified at paragraph [66] of our decision of 21 December 2021. However we are unable to accept the undertaking proffered at paragraph [4 a.] because it is not directed to any concern that we have that the Agreement does not meet the requirements of ss 186 or 187 of the FW Act. The issue sought to be addressed is the evident typographical error in the consultation term which variously references incorrect paragraph, clause and subclause numbering as “57” instead of “55”. Plainly, the reference to “57” throughout the consultation term is intended to be, and should be read as, a reference to “55”. The typographical error does not have the effect of rendering the provision non-compliant with the requirements of s 205. Consequently the acknowledgement given at paragraph [3 a.] is also unnecessary. We accept the remaining undertakings. On the basis of those undertakings, we are satisfied that the Agreement meets the requirements for approval in ss 186 and 187 as are relevant to the application, and we approve the Agreement pursuant to s 186(1) and s 190(2) of the FW Act. In accordance with s 201(3), we note that the undertakings we have accepted are taken to be a term of the agreement.
[5] Clause 54 of the Agreement purports to be a flexibility term for the purposes of s 202 of the FW Act. However clause 54 does not comply with the requirements in s 203 because it does not contain any provisions of the kind required by ss 203(2)(b) and 203(3). Accordingly the model flexibility term is taken to be a term of the Agreement and pursuant to s 201(1) we so note.
[6] The CEPU has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2), we note that the Agreement covers the CEPU.
[7] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 1 February 2022. The nominal expiry date of the Agreement is 31 October 2022.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE514706 PR737754>
ANNEXURE A
1 [2021] FWCFB 6073
2 AE513478
3 The undertakings provided on 7 January 2022 were incorrectly dated 4 January 2021. A copy of the undertakings with the correct date was subsequently provided on 25 January 2022.
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