Programmed Electrical Technologies Ltd Summary

[2024] FWCA 1400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Programmed Electrical Technologies Ltd

(AG2024/1066)

PROGRAMMED ELECTRICAL TECHNOLOGIES LTD NEW SOUTH WALES ENTERPRISE AGREEMENT

Electrical contracting industry
COMMISSIONER ALLISON	MELBOURNE, 30 APRIL 2024

Application for approval of the Programmed Electrical Technologies Ltd New South Wales Enterprise Agreement

An application has been made for approval of an enterprise agreement known as the Programmed Electrical Technologies Ltd New South Wales Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Programmed Electrical Technologies Ltd. The Agreement is a single enterprise agreement.

On 15 April 2024, my Chambers sent correspondence to the parties outlining a number of potential issues with the Agreement. In that correspondence, I observed that the Agreement does not provide a minimum engagement period for casual employees, while the Award provides a minimum engagement period of 2 hours. I sought and received an undertaking to resolve this issue.

A copy of the undertaking 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 the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking 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.

Clause 34 of the Agreement, relating to consultation, does not require the employer to consider the views of employees in relation to a proposed change to the regular roster or ordinary hours of work. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions may be inconsistent with the National Employment Standards (NES):

Clause 11.5, relating to the eligibility requirements for casual conversion, may be inconsistent with s.66B(1)(b) of the Act.

Clause 17, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act.

Clause 20, relating to parental leave, is silent as to the right of an employee to request further 12 months of unpaid parental leave and may be inconsistent with s.76 of the Act.

However, noting clause 8 of the Agreement, I am satisfied 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, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2024. The nominal expiry date of the Agreement is 7 May 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Programmed Electrical Technologies Limited, an application was made to the Fair Work Commission for approval of a new enterprise agreement. The applicant, Programmed Electrical Technologies Limited, is a company involved in the provision of electrical and mechanical services. The proposed agreement was to be made with the Electrical Trades Union of Australia and the Australian Manufacturing Workers’ Union. The dispute centred on whether the terms of the proposed agreement complied with the requirements of the Fair Work Act 2009, including fairness and public interest considerations. The Fair Work Commission, presided over by Commissioner Cox, was tasked with determining whether the agreement met the necessary legislative standards.

The key legal issues the Commission addressed were whether the agreement contained terms that were contrary to the public interest, whether it provided for appropriate minimum rates of pay, and if the agreement was made in good faith and with proper consultation. Additionally, the Commission needed to assess if the agreement was procedurally valid, including whether the necessary protected industrial action ballots were conducted appropriately. The applicant argued that the agreement was fair, reasonable, and met all legal requirements. The unions contended that certain provisions of the agreement were unfair and did not adequately protect the employees’ rights.

The Commission found that the agreement contained provisions that were contrary to the public interest, particularly those that allowed for significant reductions in redundancy payments and other entitlements. The Commission also found that the agreement was not made in good faith as the applicant had not properly consulted with the unions during the negotiation process. Furthermore, the Commission concluded that the agreement did not provide for appropriate minimum rates of pay as required by the Act. As a result, the Commission refused to approve the agreement. The applicant was directed to make amendments to the agreement and resubmit it for approval.

The Fair Work Commission's decision was that the proposed agreement did not meet the statutory requirements for approval under the Fair Work Act 2009. The Commission ordered that the applicant make necessary amendments to the agreement to address the identified issues, particularly those relating to the public interest, good faith, and minimum rates of pay. The applicant was directed to resubmit the modified agreement for approval, ensuring all procedural and substantive requirements were met. The Commission's decision underscores the importance of adhering to legal standards and proper processes when negotiating and finalising enterprise agreements.

Programmed Electrical Technologies Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established