Somerville Electric Pty Ltd

[2024] FWCA 2066

[2024] FWCA 2066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Somerville Electric Pty Ltd

(AG2024/1608)

Electrical contracting industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 4 JUNE 2024

Application for approval of the Somerville Electric Pty Ltd Single Enterprise Agreement

1. Somerville Electric Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Somerville Electric Pty Ltd Single Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights (NERR)

1. The NERR provided to employees stated that the Agreement covers employees ‘that are engaged in electrical work in New South Wales for Somerville Electric Pty Ltd’ [emphasis added]. This description of the Agreement’s coverage appears to be narrower than clause 2.1 of the Agreement, which states the agreement covers employees that perform ‘work within Australia/NSW, VIC, ACT, QLD and who performs work in accordance with the classifications covered by this Agreement’ [emphasis added]. The Employer provided submissions that this matter constituted a minor technical error. Those submissions included that all of its employees are based in New South Wales, that the majority of the work undertaken by the Employer is conducted in NSW, and that on occasion some work is undertaken in the Australian Capital Territory to which its NSW-based employees are deployed. The Employer submitted that all of its current employees:

(a)Had been provided with a copy of the NERR at the commencement of bargaining on 4 March 2024;

(b)Were employed in classifications covered by the Agreement; and,

(c)Were given the opportunity to vote on the Agreement.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) precedence term

1. Clause 3.5.4 of the Agreement provides that the employer is permitted to ‘deduct from any termination payments the balance of outstanding monies owed by the Employee’ to the employer. The effect of this clause does not appear to limit the source of monies which may be withheld or deducted, and accordingly appears to permit the employer to withhold or deduct monies owing to the employee under the NES (such as accrued but unused annual leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act. Accordingly, this clause may be inconsistent with the NES.

1. I note that in accordance with the NES precedence term in Clause 5.7 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings 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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 June 2024. The nominal expiry date of the Agreement is 4 June 2028.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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