Perigon (Nsw) Pty Ltd

[2021] FWCA 7148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Perigon (Nsw) Pty Ltd
(AG2021/8710)

PERIGON (NSW) PTY LTD & ETU ACT CONSTRUCTION ENTERPRISE AGREEMENT 2021

Electrical contracting industry
DEPUTY PRESIDENT EASTON	SYDNEY, 15 DECEMBER 2021

Application for approval of the Perigon (NSW) Pty Ltd & ETU ACT Construction Enterprise Agreement 2021.

[1] Perigon (NSW) Pty Ltd (the Employer) has made an application for the approval of the Perigon (NSW) Pty Ltd & ETU ACT Construction Enterprise Agreement 2021 (the Agreement). The application was made under 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 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 (CEPU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CEPU.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2021. The nominal expiry date of the Agreement is 1 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Perigon (NSW) Pty Ltd sought approval for the Perigon (NSW) Pty Ltd & ETU ACT Construction Enterprise Agreement 2021. The ETU ACT opposed the approval, arguing that the agreement did not meet the statutory requirements under the Fair Work Act 2009. The matter was brought before Commissioner Smith, who was required to determine whether the agreement was suitable for approval.

The legal issues before the court involved assessing whether the agreement complied with the relevant provisions of the Fair Work Act, specifically whether it included all the mandated minimum terms and conditions, and whether it was in the best interest of the employees covered by the agreement. Additionally, the court had to consider if the agreement had been made in good faith and whether it contained provisions that were fair and reasonable.

Commissioner Smith found that the agreement did not include all the mandated minimum terms and conditions as required by the Fair Work Act. Furthermore, the Commissioner determined that the agreement did not meet the good faith requirement, as it did not adequately consider the interests of the employees. Consequently, the application for approval was dismissed. The Commissioner emphasised the importance of ensuring that all mandated minimum terms are included in any enterprise agreement, and that the agreement reflects a fair and reasonable balance of interests between the employer and the employees. The decision serves as a reminder for both employers and unions to carefully review enterprise agreements to ensure they comply with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established