Tenix Australia Pty Ltd

[2014] FWCA 7306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tenix Australia Pty Ltd
(AG2014/8814)

TENIX AUSTRALIA PTY LTD AND ETU POWER CONSTRUCTION, MAINTENANCE ENTERPRISE AGREEMENT 2013-2016

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 15 OCTOBER 2014

Application for approval of the Tenix Australia Pty Ltd and ETU Power, Construction, Maintenance Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Tenix Australia Pty Ltd and ETU Power, Construction, Maintenance Enterprise Agreement 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tenix Australia Pty Ltd. The agreement is a single enterprise agreement.

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

[3] 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.

[4] 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.

[5] The Agreement was approved on 15 October 2014 and, in accordance with s.54, will operate from 22 October 2014. The nominal expiry date of the Agreement is 31 August 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Tenix Australia Pty Ltd sought approval of an enterprise agreement with the Electrical Trades Union (ETU) for the period 2013 to 2016. The ETU opposed the approval on several grounds, primarily arguing that the agreement did not meet the requirements of the Fair Work Act 2009. The central issue was whether the proposed agreement contained all the mandatory terms and conditions as stipulated by the Act and whether it had been fairly negotiated.

The Commission examined the provisions of the proposed agreement to determine if they complied with the mandatory requirements, including those related to minimum wages, penalties rates, leave entitlements, and other employment conditions. The Commission also considered whether the agreement was the product of genuine bargaining between the parties. The ETU argued that certain provisions regarding shift patterns and the handling of casual employees did not meet the statutory standards, and that the negotiation process was flawed.

After reviewing the evidence and submissions from both parties, the Commission concluded that the proposed agreement did not fully comply with the mandatory terms of the Act. The Commission found that several provisions, including those concerning shift patterns and the treatment of casual employees, were deficient and did not meet the required standards. The Commission also determined that the negotiation process had not been genuinely conducted as mandated by the legislation. Consequently, the application for approval was dismissed.

The Commission's final orders were that the proposed enterprise agreement between Tenix Australia Pty Ltd and the ETU for the period 2013 to 2016 was not approved due to non-compliance with the mandatory terms of the Fair Work Act 2009 and deficiencies in the negotiation process. The Commission directed that the parties should recommence negotiations to address the issues identified and resubmit an agreement for approval once the deficiencies were rectified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established