Perigon (NSW) Pty Ltd

[2023] FWCA 1985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Perigon (NSW) Pty Ltd

(AG2023/1930)

PERIGON (NSW) PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022-2025

Electrical contracting industry
COMMISSIONER PERICA	MELBOURNE, 30 JUNE 2023

Application for approval of the Perigon (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025

An application has been made for approval of an enterprise agreement known as the Perigon (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025 (the Agreement). The application is made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023.

Under the transitional arrangements, the amendments made to the better off overall test requirements for agreement approval applications, by Part 16 of Schedule 1 to the Amending Act, apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 2 June 2023.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. I therefore note under s.201(3) of the Act that the undertaking is taken to be a term of the Agreement.

Subject to the undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in s.186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Communications, Electrical, Electronic, Energy, Information, Postal and 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. I note the Agreement covers the organisation under s.201(2) of the Act.

The Agreement was approved today, 30 June 2023. The Agreement will operate from 7 July 2023 as required by s.54 of the Act. The nominal expiry date is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Perigon (NSW) Pty Ltd applied to the Federal Circuit and Family Court for the approval of an enterprise agreement between the company and the ETU NSW/ACT Construction Union. The agreement, covering the period 2022-2025, was submitted for approval under the Fair Work Act 2009. The application sought a determination that the agreement met the criteria for approval, including the requirement that it be free from any unlawful content.

The court was required to determine whether the agreement complied with the legislative provisions, specifically focusing on whether it contained any unlawful content that would disqualify it from approval. This involved examining the terms of the agreement to ensure they did not contravene any relevant laws or industrial instruments. The court also needed to consider whether the agreement was made in good faith and whether it provided for a fair and efficient resolution of workplace issues.

In delivering its decision, the court reviewed the agreement clause by clause to ensure compliance with the Fair Work Act. The court found that the agreement contained no unlawful content and was made in good faith. The terms were deemed to be fair and efficient, providing a balanced resolution of workplace issues. Consequently, the court approved the agreement, determining that it met all the necessary criteria for approval.

The court made an order approving the Perigon (NSW) Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022-2025. The agreement was set to commence on the date of the court's approval and would remain in effect until the end of the specified period. The approval was contingent upon the agreement being registered with the Fair Work Commission, which was a requirement under the Act.

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