Phase 4 Electrical & Data Pty Ltd

[2022] FWCA 3441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Phase 4 Electrical & Data Pty Ltd

(AG2022/3840)

Phase 4 Electrical and Data Pty Ltd Single Enterprise Agreement 2022

Electrical contracting industry
DEPUTY PRESIDENT EASTON	SYDNEY, 6 OCTOBER 2022

Application for approval of the Phase 4 Electrical and Data Pty Ltd Single Enterprise Agreement 2022.

Phase 4 Electrical & Data Pty Ltd (the Employer) has made an application for the approval of the Phase 4 Electrical and Data Pty Ltd Single Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 3.4.1(b) – Application of Agreement (Deductions)
- Clause 9.1.6 and 9.1.7 – Termination of Employment (Notice of Termination)

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 October 2022. The nominal expiry date of the Agreement is 30 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Phase 4 Electrical & Data Pty Ltd was the subject of an application to the Fair Work Commission for approval of its Single Enterprise Agreement for 2022. The dispute centred around whether the proposed agreement met the legal requirements under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement contained all the mandatory terms prescribed by the Act and whether it had been fairly and properly negotiated.

The legal issues before the Commission included whether the proposed agreement complied with the mandatory terms outlined in the Fair Work Act, particularly in relation to minimum wages, penalty rates, leave entitlements, and other conditions of employment. Additionally, the Commission had to assess whether the agreement was genuinely negotiated between the employer and the employees' representatives, and whether the process was free from coercion, harassment, or other unfair practices. The fairness of the agreement's provisions was also scrutinised to ensure they were not detrimental to the employees.

The Fair Work Commission found that the proposed agreement met all the statutory requirements and was fairly negotiated. The Commission noted that the agreement incorporated the minimum terms and conditions as stipulated by the Fair Work Act, including appropriate wage rates and leave entitlements. It was determined that the negotiation process was conducted in good faith and without any unfair labour practices. Consequently, the Commission approved the agreement, finding it to be in the best interests of the employees and compliant with all legislative requirements.

The final orders of the Fair Work Commission were that the Phase 4 Electrical and Data Pty Ltd Single Enterprise Agreement 2022 be approved and registered under the Fair Work Act 2009. The agreement was to take effect from the date of the Commission's decision and would apply to the employees covered by the enterprise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established