DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Perigon Pty Ltd
(AG2019/4214)

PERIGON ELECTRICAL PTY LTD & ETU SYDNEY CONSTRUCTION ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER WILSON	MELBOURNE, 9 DECEMBER 2019

Application for approval of the Perigon Electrical Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Perigon Electrical Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Perigon Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] I note that clauses 45(a) and 45(g) of the Agreement may not be permitted deductions within the meaning of s.324 of the Act, and pursuant to s.326 of the Act are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, 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. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2019. The nominal expiry date of the Agreement is 31 October 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Perigon Pty Ltd, the Fair Work Commission was presented with an application for the approval of the Perigon Electrical Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019. The dispute arose between the employer, Perigon Electrical Pty Ltd, and the Electrical Trade Union (ETU), representing the employees, concerning the terms and conditions of employment as outlined in the proposed enterprise agreement. The Commission was tasked with determining whether the agreement met the legal standards for approval under the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the agreement was a "better off overall test" (BOOT) compliant enterprise agreement and if it complied with the procedural fairness requirements. The BOOT test required the Commission to consider if the proposed agreement would provide employees with a total package of pay and conditions that was at least as good as what they would receive under the applicable awards. Procedural fairness involved assessing whether the agreement was genuinely negotiated and whether proper consultation and information processes were followed.

The Commission found that the agreement met the BOOT criteria, as it offered employees terms and conditions that were at least as good as, if not better than, what they would receive under the relevant awards. Furthermore, the Commission was satisfied that the agreement had been genuinely negotiated and that the consultation processes were fair and in line with the legislative requirements. Consequently, the application for approval of the enterprise agreement was successful.

The Commission approved the Perigon Electrical Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019, effective from the date of the decision. This decision provided a framework for the terms and conditions of employment for the employees covered by the agreement, ensuring they were adequately protected and fairly compensated.

Perigon 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