REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sommerville Electric Pty Ltd
(AG2019/2101)

Electrical contracting industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 19 NOVEMBER 2019

Application for approval of the Somerville Electric Pty Limited Single Enterprise Agreement 2019 — roll-over enterprise agreement — proposed enterprise agreement bargained directly with employees — union request to be heard pursuant to s.590 of the Fair Work Act 2009 – union request to be heard rejected — whether reasonable steps to explain the terms and the effect of terms of proposed enterprise agreement — whether proposed enterprise agreement passes the better off overall test — proposed enterprise agreement approved.

Overview

[1] An application has been made for approval of an enterprise agreement to be known as the Somerville Electric Pty Limited Single Enterprise Agreement 2019 (Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the employer, Somerville Electric Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

[2] Of the 30 employees entitled to vote to approve the Agreement, 30 employees voted, and 29 employees voted to approve the Agreement (i.e. a 96.67 percent majority of employees voted to approve the Agreement).

[3] Rates of pay under the Agreement are up to 35 percent above the relevant modern (reference) award, being the Electrical, Electronic and Communications Contracting Award 2010 (Award).

[4] Two employees were appointed as bargaining representatives on behalf of some of the relevant employees.

CEPU request to be heard pursuant to s.590 of the Act rejected

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) objects to the approval of the Agreement. The CEPU was not involved in the bargaining process for the Agreement, and even if approved by the Commission, the CEPU does not request to have the Agreement cover it.

[6] The CEPU accepts that it was not a bargaining representative (default or otherwise) in respect of the Agreement. Despite this, the CEPU sought to be heard in this matter pursuant to s.590 of the Act, to oppose the approval of the Agreement. This request was opposed by the Applicant.

[7] By way of written submissions dated 19 July 2019, the CEPU accepted that it had no right to be heard in the matter other than by way of permission under pursuant to s.590 of the Act. In summary, the CEPU submitted that:

a) it had coverage (under its Rules) and membership within the electrical contracting industry; and

b) it is likely that the CEPU will have members employed by the Applicant, and thus covered by the Agreement, into the future, to whom the CEPU will likely be representing the industrial interests of.

[8] Having regard to the foregoing, the CEPU submitted that it is appropriate that the CEPU be allowed to be heard in this matter, and involved as a contradictor, to enable the scrutiny…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sommerville Electric Pty Ltd [2019] FWC 7876
Case: [2019] FWC 7876
Decision Date: 19 NOVEMBER 2019

CaseChat Overview and Summary

Sommerville Electric Pty Ltd, the applicant, sought approval of the Somerville Electric Pty Limited Single Enterprise Agreement 2019. The dispute involved the application for the roll-over of an existing enterprise agreement, with a proposed agreement bargained directly with employees, excluding the union. The union requested to be heard under section 590 of the Fair Work Act 2009, but this request was rejected. The legal issues before the court were whether reasonable steps were taken to explain the terms and effects of the proposed enterprise agreement, and whether the proposed enterprise agreement passed the better off overall test.

The court examined the process followed by the applicant to inform and explain the terms of the proposed enterprise agreement to the employees. It assessed the reasonableness of the steps taken by the applicant in the context of the specific circumstances of the enterprise. The court also evaluated whether the proposed enterprise agreement met the better off overall test, considering the overall financial and non-financial benefits to the employees. In its reasoning, the court found that the applicant had taken reasonable steps to explain the terms and effects of the proposed agreement, and that the proposed agreement passed the better off overall test.

Consequently, the court approved the proposed enterprise agreement. The decision underscores the importance of transparent communication and the necessity for an enterprise agreement to provide overall benefits to employees to be approved. The final orders of the court reflect its determination that the proposed enterprise agreement meets the legal requirements and should be approved for implementation.

Orders