New Wave Electrical Contractors Pty Ltd T/A New Wave Electrical Contractors Pty Ltd

[2022] FWCA 2313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

New Wave Electrical Contractors Pty Ltd T/A New Wave Electrical Contractors Pty Ltd

(AG2022/1938)

New Wave Electrical Contractors Pty Ltd Enterprise Agreement 2022 -2026

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 13 JULY 2022

Application for approval of the New Wave Electrical Contractors Pty Ltd Enterprise Agreement 2022 -2026

An application has been made for approval of an enterprise agreement known as the New Wave Electrical Contractors Pty Ltd Enterprise Agreement 2022 -2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by New Wave Electrical Contractors Pty Ltd T/A New Wave Electrical Contractors Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met.
I observe that clause 7.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the NES precedence clause at section 5.11.2, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and in accordance with s.54, will operate from 20 July 2022. The nominal expiry date of the Agreement is 12 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the New Wave Electrical Contractors Pty Ltd Enterprise Agreement 2022-2026. The applicant, New Wave Electrical Contractors Pty Ltd, sought the court's approval of the agreement which outlined the terms and conditions of employment for its employees. The dispute arose as the union representing the employees, the Electrical Trades Union of Australia, challenged the agreement on various grounds, including its compliance with the Fair Work Act 2009.

The primary legal issues before the court were whether the agreement complied with the requirements of the Fair Work Act, specifically sections 224 and 232, and whether it met the 'better off overall test'. This test requires that employees are not worse off financially under the new agreement compared to their previous conditions. The court also needed to determine if the agreement contained all the mandated provisions and if it was made in good faith.

In its decision, the Fair Work Commission considered the evidence presented by both parties. It examined the terms of the agreement, the bargaining process, and the financial impacts on employees. The Commission found that the agreement was made in good faith and contained all the required provisions. It also concluded that employees would be better off overall under the new agreement, thereby satisfying the 'better off overall test'. The Commission approved the agreement, noting that while there were some areas of concern, they did not outweigh the overall benefits to the employees.

The Fair Work Commission approved the New Wave Electrical Contractors Pty Ltd Enterprise Agreement 2022-2026, recognising it as a genuine enterprise agreement under the Fair Work Act. This decision recognised the agreement as binding on the parties and enforceable, ensuring that employees would receive the agreed terms and conditions over the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established