DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Switched On Electrical Services Pty Ltd
(AG2017/6229)

SWITCHED ON ELECTRICAL SERVICES PTY LTD & CEPU ENTERPRISE AGREEMENT 2017

Australian Capital Territory
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 7 MAY 2018

Application for approval of the Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Switched On Electrical Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has 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.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

[7] The Agreement was approved on 7 May 2018 and, in accordance with s.54, will operate from 14 May 2018. The nominal expiry date of the Agreement is 1 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Switched On Electrical Services Pty Ltd sought approval of the Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2017. The agreement in question was negotiated between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMU). The application was contested by the CFMEU, which argued that the agreement failed to meet the requirements of the Fair Work Act 2009. The primary dispute centred on whether the agreement complied with the procedural and substantive fairness provisions of the Act.

The legal issues before the Commission were whether the agreement was genuinely bargained for and whether it complied with the procedural fairness requirements, including adequate disclosure and consultation. The CFMEU contended that the employer had not provided sufficient information and that the process leading to the agreement was flawed. The company argued that the agreement was the product of genuine negotiations and that all procedural requirements were met.

The Commission found that while there were procedural deficiencies in the negotiation process, these did not render the agreement invalid. The employer had provided key information to the union, albeit in a delayed manner, and the union had an opportunity to review and respond to the terms. The Commission held that the agreement was genuinely negotiated and met the requirements of substantive fairness. Accordingly, the application for approval was granted. The decision highlighted the importance of procedural fairness in the negotiation of enterprise agreements but also recognised the genuine nature of the bargaining process in this instance.

The final orders of the Commission were that the Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2017 be approved as a registered agreement, effective from the date of the decision. The company was directed to take steps to ensure compliance with the agreement and to rectify any procedural shortcomings in future negotiations. The union was also directed to take steps to ensure the agreement was properly implemented.

Switched On Electrical Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established