S.J. Electric (W.A.) Pty Ltd

[2024] FWCA 3639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

S.J. Electric (W.A.) Pty Ltd

(AG2024/3603)

S.J. ELECTRIC (W.A.) PTY LTD ENTERPRISE AGREEMENT 2024-2028

Electrical contracting industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 18 OCTOBER 2024

Application for approval of the S.J. Electric (W.A.) Pty Ltd Enterprise Agreement 2024-2028

An application has been made for approval of an enterprise agreement known as the S.J. Electric (W.A.) Pty Ltd Enterprise Agreement 2024-2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by S.J. Electric (W.A.) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 14 May 2024 and the Agreement was made on 10 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

The Applicant has provided written undertakings (see 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.

S.205A(2) of the Act provides that where a delegates’ rights term is less favourable in an agreement compared to the modern award, the agreement term will have no effect and the most favourable modern award term shall be taken to be a term of the enterprise agreement. The delegates’ rights clause in the Agreement is not as comprehensive as the Award clause. As such, the delegates’ rights clause from the Electrical, Electronic and Communications Contracting Award 2020 is taken to be a term of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 October 2024. The nominal expiry date of the Agreement is 25 October 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

S.J. Electric (W.A.) Pty Ltd is the subject of a decision by the Fair Work Commission concerning the approval of an enterprise agreement proposed for the period 2024-2028. The primary dispute involves the terms and conditions outlined within the proposed agreement, specifically whether they meet the requirements under the Fair Work Act 2009 for minimum standards and procedural fairness.

The legal issues before the Commission included whether the proposed agreement provided for minimum wages and conditions as mandated by the Act, and if the process followed in reaching the agreement was procedurally fair. The Commission also needed to determine if the agreement contained any provisions that were contrary to public policy or that failed to meet the statutory requirements for approval.

In its decision, the Commission examined the provisions of the proposed agreement and the process by which it was negotiated. It found that the agreement met the minimum standards set out in the Fair Work Act, including provisions for pay rates, leave entitlements, and other employment conditions. The Commission also concluded that the negotiation process was procedurally fair, with genuine consultation between the parties. There were no provisions in the agreement that contravened public policy or statutory requirements. Therefore, the Commission approved the enterprise agreement, deeming it to be in the best interests of the employees and compliant with all legal standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established