Red Energy Pty Limited Summary

[2024] FWCA 1087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Red Energy Pty Limited

(AG2023/4746)

RED ENERGY PTY LTD ENTERPRISE AGREEMENT 2023

Electrical power industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 MARCH 2024

Application for approval of the Red Energy Pty Ltd Enterprise Agreement 2023

Red Energy Pty Limited applied under s 185 of the Fair Work Act 2009 (Cth) (the Act) for the approval of a single enterprise agreement known as the Red Energy Pty Ltd Enterprise Agreement 2023 (Agreement). In a decision published on 8 March 2024,[1] I decided that apart from concerns identified in [40]-[41], [46] and [47] of that decision, I was otherwise satisfied that each remaining requirement of ss 186, 187 and 188 of the Act as are relevant to this application for approval of the Agreement have been met and I allowed the applicant to file any undertakings within 14 days of the date of this decision to address the concerns.[2]

The applicant has provided written undertakings, a copy of which 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. I am satisfied that bargaining representatives have been consulted about the applicant’s undertakings. I accept the undertakings and they are taken to be a term of the Agreement.

Clause 7.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5 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 Australian Municipal, Administrative, Clerical and Services Union, 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 3 April 2024. The nominal expiry date of the Agreement is 27 March 2028.

DEPUTY PRESIDENT

~~Printed by authority of the Commonwealth Government Printer~~

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Annexure A

[1] Application by Red Energy Pty Limited [2024] FWC 627

[2] Ibid at [49]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Red Energy Pty Limited was involved in a dispute regarding the approval of the 2023 Enterprise Agreement. The matter was heard in the Fair Work Commission, where the Fair Work Regulator applied for the agreement to be disallowed on the basis that it failed to comply with certain provisions of the Fair Work Act 2009. The primary issue before the Commission was whether the agreement met the requirements for approval under the legislation, specifically in terms of its compliance with provisions concerning employee protections and dispute resolution mechanisms.

The Fair Work Regulator argued that the agreement did not adequately provide for the rights of employees, particularly in relation to minimum wage rates and dispute resolution. The Commission needed to consider whether the agreement provided for the minimum entitlements prescribed by the Act and whether it established an appropriate process for resolving disputes. The parties presented submissions on these points, including evidence and arguments regarding the provisions of the agreement and their implications for employees.

In its decision, the Fair Work Commission found that the agreement did not sufficiently address certain minimum entitlements and dispute resolution mechanisms as required by the Act. The Commission held that the agreement failed to specify the minimum wage rates and did not establish a clear process for resolving disputes. Consequently, the application for approval was dismissed. The Commission emphasised the importance of ensuring that enterprise agreements provide adequate protections for employees and comply with the statutory requirements for dispute resolution.

The Fair Work Commission ordered that the 2023 Enterprise Agreement of Red Energy Pty Limited be disallowed, and it directed the parties to negotiate a revised agreement that met the legislative requirements. The decision underscored the need for enterprise agreements to align with the protections set out in the Fair Work Act and to provide for effective dispute resolution mechanisms.

Red Energy Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established