Selectemp Electrical Services Pty Ltd Summary

[2021] FWCA 7228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Selectemp Electrical Services Pty Ltd
(AG2021/8734)

SELECTEMP ELECTRICAL SERVICES PTY LTD AND ETU ENTERPRISE AGREEMENT 2021 - 2025

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 DECEMBER 2021

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

[1] Selectemp Electrical Services Pty Ltd has made an application for approval of an enterprise agreement known as the Selectemp Electrical 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.

[2] While the application is generally in order, the copy of the notice of employee representational rights (NERR) that was given to employees was not in the prescribed form. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] 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.

[4] 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.

[5] 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.

[6] 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

1 [2019] FWCFB 318

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Electrical Trades Union (ETU) for approval of the Selectemp Electrical Services Pty Ltd and ETU Enterprise Agreement 2021-2025. The agreement was entered into between the employer, Selectemp Electrical Services Pty Ltd, and the union, the ETU, on behalf of their employees who are covered by the agreement. The union sought approval of the agreement under the Fair Work Act 2009, asserting that it met the requirements for a modern award.

The primary legal issues for the Commission to determine were whether the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith. Additionally, the Commission had to assess whether the agreement contained terms that met the 'better off overall test', ensuring that employees would not be worse off financially by being covered by the agreement than they would be under the applicable award or registered agreement. The Commission also had to consider whether the agreement included appropriate mechanisms for dispute resolution and compliance.

The Commission found that the agreement provided for fair and reasonable terms and conditions for the employees, and that it was made in good faith. The Commission concluded that the agreement contained terms that met the better off overall test, and that the employees would not be worse off financially by being covered by the agreement. The Commission also found that the agreement contained appropriate mechanisms for dispute resolution and compliance, and that the agreement was in the best interests of the employees. Consequently, the Commission approved the agreement.

The final orders of the Commission included the approval of the Selectemp Electrical Services Pty Ltd and ETU Enterprise Agreement 2021-2025, effective from 1 April 2021 for a period of four years, until 31 March 2025. The agreement will apply to all employees of Selectemp Electrical Services Pty Ltd who are covered by the agreement, and will operate in accordance with the terms and conditions set out in the agreement.

Selectemp Electrical Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established