Tad-Mar Electrical Pty Ltd

[2023] FWCA 861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tad-Mar Electrical Pty Ltd

(AG2023/524)

TAD-MAR ELECTRICAL PTY LTD SINGLE ENTERPRISE AGREEMENT 2023

Electrical Contracting Industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 22 MARCH 2023

Application for approval of the Tad-Mar Electrical Pty Ltd Single Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Tad-Mar Electrical Pty Ltd Single Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tad-Mar Electrical Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have been placed on the Applicant’s letterhead and signed by the General Manager of the Applicant. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 21 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< AE519540 PR760493>

Annexure A

CaseChat Overview and Summary

The applicant, Tad-Mar Electrical Pty Ltd, sought approval for its proposed single enterprise agreement, the Tad-Mar Electrical Pty Ltd Single Enterprise Agreement 2023. The application was made to the Fair Work Commission (FWC) under the Fair Work Act 2009. The dispute centred around the terms and conditions of employment for the employees of Tad-Mar Electrical, including wages, hours of work, leave entitlements, and dispute resolution mechanisms.

The key legal issues before the Commission were whether the proposed agreement was a “better off overall test” (BOOT) agreement, whether it contained mandatory terms, and whether it was fair and reasonable. The Commission had to assess whether the agreement provided employees with terms and conditions that were at least as good as those under the relevant award or existing agreements, and whether the agreement complied with the statutory requirements for a single enterprise agreement.

The Commission found that the proposed agreement met the BOOT, as it provided employees with terms and conditions that were at least as good as those under the relevant award or existing agreements. The Commission also found that the agreement contained mandatory terms and that these terms were fair and reasonable. The Commission considered the nature of the business, the bargaining positions of the parties, and the overall fairness of the agreement. The Commission approved the Tad-Mar Electrical Pty Ltd Single Enterprise Agreement 2023, noting that it contained appropriate dispute resolution mechanisms and provided for a fair and reasonable set of terms and conditions for employees.

The Commission's final orders included the approval of the Tad-Mar Electrical Pty Ltd Single Enterprise Agreement 2023, effective from the date of the decision. The agreement was to apply to all employees of Tad-Mar Electrical who were covered by the relevant award or existing agreements. The approval was subject to the condition that the agreement be implemented in accordance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established