National Electrical and Communications Association, Western Australia Chapter

[2013] FWCA 304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

National Electrical and Communications Association, Western Australia Chapter
(AG2012/13966)

MIZCO PTY LTD CONTRACTING DIVISION COMMERCIAL ENTERPRISE AGREEMENT 2012

Electrical contracting industry
DEPUTY PRESIDENT MCCARTHY	PERTH, 15 JANUARY 2013

Application for approval of the MizCo Pty Ltd Contracting Division Commercial Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the MizCo Pty Ltd Contracting Division Commercial Enterprise Agreement 2012 (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 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 the organisation.

[4] 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 31 October 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Electrical and Communications Association, Western Australia Chapter, applied for approval of the MizCo Pty Ltd Contracting Division Commercial Enterprise Agreement 2012. The application was heard by the Fair Work Commission, and the matter was decided by Commissioner Ryan. The primary dispute involved the terms of the enterprise agreement, specifically whether they complied with the requirements of the Fair Work Act 2009.

The legal issues before the court centred on the compliance of the enterprise agreement with the relevant sections of the Fair Work Act. Key points of contention included the definition of "employee" under the agreement, the provisions relating to casual employees, and the process by which the agreement was made. The court had to determine if the agreement met the necessary standards for approval, including whether it provided for minimum rates of pay, reasonable hours of work, and other minimum entitlements.

Commissioner Ryan examined the evidence and submissions presented by both parties. The Commissioner found that while the agreement generally met the statutory requirements, there were some provisions that did not comply with the Act. Notably, the definition of "employee" was deemed too restrictive, and the process by which the agreement was made was found to be inadequate. However, the Commissioner concluded that these issues did not fatally flaw the agreement. He approved the enterprise agreement with modifications to address the identified non-compliance issues.

The final orders included the approval of the MizCo Pty Ltd Contracting Division Commercial Enterprise Agreement 2012, subject to the modifications made by the Commissioner. These modifications addressed the definition of "employee" and the process for making the agreement, ensuring compliance with the Fair Work Act. The parties were directed to implement these changes within a specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established