DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O’Neill & Brown Electrical Services Pty Ltd
(AG2018/5282)

COMMISSIONER CIRKOVIC

MELBOURNE, 20 MARCH 2019

Application for approval of the O’Neill and Brown Electrical & Service Enterprise Agreement 5 September - 31 May 2021 – Application Dismissed.

[1] An application has been made for approval of an enterprise agreement known as the O'Neill and Brown Electrical & Service Enterprise Agreement 5 September – 31 May 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by O’Neill & Brown Electrical Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] On 8 February 2019 staff of the Commission sent an email to the Applicant, Mr Lucas Anderson noting preliminary concerns relating to the application, in relation to compliance with Regulation 2.06A of the Fair Work Regulation 2009 (the Regulations), concerns relating to section 173, section 180(5), and section 196(2) of the Fair Work Act 2009 (the Act), concerns relating to the National Employment Standards and concerns relating to the Better Off Overall Test. No response was received.

[3] On 20 February 2019 staff of the Commission sent an email to the Applicant seeking a response. No response was received.

[4] On 21 February 2019 staff of the Commission sent another email to the Applicant seeking a response and indicated that the application may be determined based on the documentation lodged with the Commission to date.

[5] On 21 February 2019 the Commission received a call from the General Manager of the Applicant, Mr Anthony Fowlie, indicating that he would provide a response to the preliminary concerns raised by the Commission but would need further time to do this.

[6] On 22 February 2019 the Commission received an email from Mr Anthony Fowlie on behalf of the Applicant seeking an extension of one week in order to provide a response to the preliminary concerns raised by the Commission.

[7] On 22 February 2019 staff of the Commission sent an email to the Applicant granting an extension until 1 March 2019 to respond to the preliminary concerns raised. No response was provided.

[8] On 4 March 2019 staff of the Commission sent another email to the Applicant noting that a response had not yet been provided and invited the Applicant to provide a response by no later than close of business on 5 March 2019. The email further stated that in the absence of a response from the Applicant the Commissioner may decide the Application based on the material provided to date.

[9] On 5 March 2019 the Commission received an email from Mr Anthony Fowlie on behalf of the Applicant which indicated that the Applicant would not be able to submit a response by close of business on 5 March 2019.

[10] On 5 March 2019 staff of the Commission sent an email to the Applicant seeking clarification as to when the Applicant would be able to provide a response. No response was received.

[11] On 13 March 2019 a Notice of Listing was sent to the Applicant which indicated that if a response was not provided by the Applicant by close of business on 15 March 2019, the Commissioner may make a decision dismissing the Application. No response was received.

[12] On 19 March 2019 staff of the Commission sent an email attaching the Notice of Listing to Mr Anthony Fowlie and invited the Applicant to provide a response by midday on 20 March 2019. The email indicated that in the absence of a response it is likely that the Commissioner would issue a decision dismissing the Application. No response was received.

[13] The Applicant has been given numerous opportunities to provide further information but has provided no response despite efforts by staff of the Commission to procure an explanation.

[14] Based on the material filed with the Commission to date, the Commission cannot be satisfied that the requirements of the Fair Work Act have been complied with. Consequently the Commission cannot approve the Application for approval of the Agreement.

[15] For these reasons the Application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of O’Neill & Brown Electrical Services Pty Ltd, an application for approval of the O’Neill and Brown Electrical & Service Enterprise Agreement was heard by the Fair Work Commission. The application spanned from 5 September to 31 May 2021, and ultimately, the application was dismissed. The applicant, O’Neill & Brown Electrical Services Pty Ltd, sought approval for an enterprise agreement that would cover its employees, aiming to formalise terms and conditions of employment. The nature of the dispute primarily revolved around whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues that the Commission was required to decide included whether the agreement had been fairly and genuinely negotiated, whether it complied with the procedural requirements set forth by the Fair Work Act, and whether it provided for appropriate minimum entitlements for employees. Additionally, the Commission examined if the agreement included terms that were consistent with the principles of enterprise bargaining and whether it provided for proper dispute resolution mechanisms.

The Fair Work Commission, after thorough examination, found that the application did not meet the necessary statutory criteria for approval. The Commission determined that there were procedural deficiencies in the negotiation process and that certain provisions of the agreement failed to adequately address minimum entitlements. Furthermore, the Commission concluded that the agreement lacked appropriate dispute resolution mechanisms. Consequently, the application for approval was dismissed, and the proposed enterprise agreement was not certified.

The final orders of the Commission mandated that the applicant rectify the identified deficiencies and resubmit the agreement for consideration. The Commission emphasised the importance of genuine negotiation, procedural compliance, and the provision of fair minimum entitlements in any future application. The decision underscores the stringent requirements for enterprise agreements under the Fair Work Act and the necessity for careful adherence to both the letter and spirit of the law in enterprise bargaining processes.

O’Neill & Brown Electrical Services 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