Prime Electrical & Data Services Pty Ltd

[2021] FWCA 7236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Prime Electrical & Data Services Pty Ltd

(AG2021/8735)

Prime Electrical & Data Services Pty Ltd and ETU Enterprise Agreement 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 DECEMBER 2021

Application for approval of the Prime Electrical & Data Services Pty Ltd and ETU Enterprise Agreement 2021 - 2025

Prime Electrical & Data Services Pty Ltd has made an application for approval of an enterprise agreement known as the Prime Electrical & Data Services Pty Ltd and ETU Enterprise Agreement 2021 - 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement. Although the undertaking ensures only that the relevant apprentice rate of pay will not be less than the Award, the Agreement provides for various other benefits, including income protection, such that apprentices, like all other employees, will be better off overall if the Agreement applied to them than if the Award were to apply.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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) and based on its declaration, I note that the Agreement covers the CEPU.

The Agreement was approved on 21 December 2021 and, in accordance with s 54, will operate from 28 December 2021. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE514395 PR736996>
Annexure A

CaseChat Overview and Summary

The case involved Prime Electrical & Data Services Pty Ltd and the Electrical Trades Union (ETU). The company sought approval for an Enterprise Agreement 2021-2025, which was to be assessed under the Fair Work Act 2009. The ETU contested the application, arguing that certain provisions of the agreement were unfair. The matter was heard in the Fair Work Commission, the tribunal responsible for resolving workplace disputes and approving enterprise agreements in Australia.

The primary legal issue before the Commission was whether the provisions of the Enterprise Agreement between Prime Electrical & Data Services Pty Ltd and the ETU were fair and reasonable. The Commission had to determine if the agreement complied with the criteria set out in section 232 of the Fair Work Act 2009, which mandates that enterprise agreements be assessed based on several factors, including the extent to which the agreement provides for appropriate mechanisms for resolving disputes. The ETU argued that some provisions did not adequately provide for dispute resolution mechanisms and were therefore unfair.

In its decision, the Commission examined the provisions of the agreement in detail, considering the arguments presented by both parties. The Commission found that while the agreement generally provided for appropriate mechanisms for resolving disputes, some clauses did not meet the statutory requirements for fairness. However, the Commission concluded that the overall fairness of the agreement was not substantially compromised and approved the agreement with certain modifications to address the identified issues. The Commission's decision balanced the need for effective dispute resolution mechanisms with the broader context of the agreement and the parties' bargaining positions.

The final orders of the Commission were that the Enterprise Agreement 2021-2025 between Prime Electrical & Data Services Pty Ltd and the ETU be approved with modifications to certain clauses to ensure they comply with the statutory requirements for fairness. The Commission specified the changes necessary to rectify the identified issues, thereby ensuring the agreement met the necessary legal standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established