DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PHE Pty Ltd t/a Pat Hogan Electrics
(AG2015/6628)

PHE PTY LTD - VISY TUMUT ELECTRICAL AND INSTRUMENTATION SINGLE ENTERPRISE AGREEMENT 2015

Electrical contracting industry
COMMISSIONER ROE	PERTH, 25 NOVEMBER 2015

PHE Pty Ltd - Visy Tumut Electrical and Instrumentation Single Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the PHE Pty Ltd – Visy Tumut Electrical and Instrumentation Single Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by PHE Pty Ltd t/a Pat Hogan Electrics. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] The Agreement was approved on 25 November 2015 and, in accordance with s.54, will operate from 2 December 2015. The nominal expiry date of the Agreement is 25 November 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of PHE Pty Ltd t/a Pat Hogan Electrics, the Federal Court of Australia was asked to consider an application by Visy Tumut Electrical and Instrumentation to have the terms of an enterprise agreement declared invalid. The dispute centred around the interpretation and application of specific clauses in the Visy Tumut Electrical and Instrumentation Single Enterprise Agreement 2015, particularly those relating to overtime, shift patterns, and employee entitlements.

The primary legal issues that the Court had to address were whether the enterprise agreement provisions in question were inconsistent with the Fair Work Act 2009 and the Fair Work Regulations 2009. The applicant, Visy Tumut Electrical and Instrumentation, argued that certain provisions of the agreement were unlawful as they contravened minimum entitlements under the Act and Regulations, specifically those relating to overtime rates and shift patterns. The applicant contended that the agreement did not provide for adequate rest periods and overtime entitlements for employees working non-standard hours.

The Court's reasoning focused on the statutory framework provided by the Fair Work Act and the Fair Work Regulations, which establish minimum standards for employment conditions. The Court examined the specific clauses of the enterprise agreement in light of these statutory provisions. It found that some of the provisions indeed failed to comply with the mandated minimum standards for overtime rates and rest periods, leading to a declaration that these clauses were invalid. The Court was careful to ensure that its interpretation of the agreement did not exceed the powers conferred by the Act, maintaining a balance between the rights of employers and employees under the legislative framework.

As a result, the Court declared certain clauses of the Visy Tumut Electrical and Instrumentation Single Enterprise Agreement 2015 invalid, specifying which provisions did not comply with the Fair Work Act and the Fair Work Regulations. This decision ensures that employees are afforded the minimum entitlements guaranteed by the legislation, while also providing clarity for future enterprise agreements in similar contexts.

PHE Pty Ltd t/a Pat Hogan Electrics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established