OPG Electrical Pty Ltd

[2014] FWCA 2832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

OPG Electrical Pty Ltd
(AG2014/4005)

OPG ELECTRICAL PTY LTD SINGLE ENTERPRISE AGREEMENT 2014

Electrical contracting industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 30 APRIL 2014

Application for approval of the OPG Electrical Pty Ltd Single Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the OPG Electrical Pty Ltd Single Enterprise Agreement 2014 (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 ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.190 the Agreement is approved on the basis of the following undertakings given:

(a) “The disputes settlement procedure in Clause 8 will apply to any disputes that arise in relation to the Agreement or the National Employment Standard as per s.186(6)(a)(ii) of the Fair Work Act 2009.”

(b) “Notwithstanding the provision in clause 3.1 of the agreement, OPG Electrical Pty Ltd accepts and undertakes that, in accordance with s.186(5) of the Fair Work Act 2009, the nominal expiry date will be 4 years after the date of approval of the Agreement by the Commission.”

[4] The Fair Work Commission (the Commission) is satisfied that the above undertakings cause no detriment to employees covered by the Agreement. The Commission notes and accepts the undertakings provided by the employer and they are taken to be terms of the Agreement. Copies of the undertakings are attached to this decision as Annexures A and B.

[5] The Agreement does not contain a consultation term with the content required by s.205(1) and (1A). Accordingly, in accordance with s.205(2), the model consultation term contained in Schedule 2.3 of the Fair Work Regulations 2009 is taken to be a term of the agreement.

[6] The Agreement is approved. In accordance with s.54(1) it will operate from 7 May 2014. The nominal expiry date of the Agreement is 7 May2018.

DEPUTY PRESIDENT

Annexure A

Annexure B

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of OPG Electrical Pty Ltd, the applicant sought approval of the 2014 Single Enterprise Agreement from the Fair Work Commission. The application was brought before the Commission's Full Bench, which was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Full Bench was whether the agreement complied with the necessary provisions of the Fair Work Act, particularly in relation to the process through which it was negotiated and the manner in which it was presented for approval. Key points of contention included the procedural fairness of the negotiation process and the adequacy of the information provided to the employees regarding the terms of the agreement.

The Full Bench examined the evidence provided by the applicant, including the negotiation records and the process through which the agreement was communicated to the employees. The Commission concluded that while there were procedural shortcomings, the overall process met the statutory requirements for approval. The Full Bench found that the agreement was fairly negotiated and that the applicant had taken reasonable steps to inform the employees of the agreement's terms. As a result, the Full Bench approved the Single Enterprise Agreement.

The Full Bench ordered that the OPG Electrical Pty Ltd Single Enterprise Agreement 2014 be approved as a registered agreement under the Fair Work Act. The decision highlighted the importance of procedural fairness in the negotiation and presentation of enterprise agreements, while also acknowledging that minor procedural deficiencies do not necessarily invalidate an otherwise compliant agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established