Switched On Electrical Services Pty Ltd

[2014] FWCA 7119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Switched On Electrical Services Pty Ltd
(AG2014/7429)

SWITCHED ON ELECTRICAL SERVICES PTY LTD & CEPU ENTERPRISE AGREEMENT 2014-2016

Electrical contracting industry
COMMISSIONER RIORDAN	SYDNEY, 9 OCTOBER 2014

Application for approval of the Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2014-2016.

[1] An application has been made for approval of an enterprise agreement known asthe Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2014-2016 (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 Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The parties have provided correspondence to the Commission to confirm section 180(2)(a) of the Act has been adhered to by the parties.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 1 December 2016.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Switched On Electrical Services Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMU) pursuant to section 230 of the Fair Work Act 2009. The respondent union was represented by a bargaining representative, the CFMEU, which had entered into the agreement on behalf of its members. The dispute arose when certain employees objected to the agreement, leading to the application for approval by the Fair Work Commission. The Commission had to determine whether the agreement met the criteria for approval under the Act.

The primary legal issue before the Commission was whether the agreement was a "direct" agreement, as defined in the Fair Work Act. The Act requires that an enterprise agreement must be a "direct" agreement between an employer and employees, with the employer being the entity employing the employees. The Commission had to consider whether the agreement was direct, given that the applicant was a franchisor and the employees worked for a franchisee. Additionally, the Commission needed to assess whether the agreement complied with the "better off overall test" under section 235 of the Act.

The Commission found that the agreement was direct, as the applicant was the franchisor and had control over the business operations, despite the employees being employed by the franchisee. The Commission determined that the agreement was made in good faith and that the employees were better off overall when compared to the previous agreement. The Commission noted that the employees had received wage increases and improvements in working conditions, which satisfied the better off overall test. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Switched On Electrical Services Pty Ltd & CEPU Enterprise Agreement 2014-2016, finding it to be a direct agreement and meeting the better off overall test. The Commission's decision affirmed that the agreement was made in good faith and provided improvements to the employees' conditions. This ruling ensures the agreement's enforceability and sets a precedent for similar cases involving franchisor-franchisee relationships.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established