DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TES Mechanical Electrical Qld Pty Ltd
(AG2021/197)

TES MECHANICAL ELECTRICAL QLD PTY LTD AND CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2019 - 2023

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 FEBRUARY 2021

Application for approval of the TES Mechanical Electrical Qld Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019 - 2023.

[1] TES Mechanical Electrical Qld Pty Ltd has made an application for approval of an enterprise agreement known as the TES Mechanical Electrical Qld Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019 - 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[3] 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 15 February 2021 and, in accordance with s 54, will operate from 22 February 2021. The nominal expiry date of the Agreement is 31 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, TES Mechanical Electrical Qld Pty Ltd, sought approval of the TES Mechanical Electrical Qld Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019-2023. The respondent, CEPU Electrical Division Queensland, opposed the application, contending that the agreement failed to meet the ‘better off overall test’ as stipulated under the Fair Work Act 2009. The dispute involved the interpretation and application of the ‘better off overall test’ and the procedural fairness requirements as outlined in the Fair Work Act.

The primary legal issue before the Commission was whether the proposed agreement was compliant with the ‘better off overall test’ and whether the process leading to the agreement was procedurally fair. The Commission examined whether the employees were better off overall by considering the financial and non-financial benefits provided by the agreement. Additionally, the Commission assessed the fairness of the bargaining process, including whether the employees had adequate opportunity to participate in the negotiation and whether the agreement was reasonably likely to be accepted by the employees.

The Fair Work Commission determined that the proposed agreement met the ‘better off overall test’. The Commission found that the financial and non-financial benefits provided in the agreement sufficiently outweighed any detriments. The Commission also concluded that the bargaining process was procedurally fair, as the employees had adequate opportunity to participate and the agreement was reasonably likely to be accepted. Consequently, the application for approval was granted, and the agreement was approved as a registered instrument.

The final orders of the Commission were that the TES Mechanical Electrical Qld Pty Ltd and CEPU Electrical Division Queensland Enterprise Agreement 2019-2023 be approved and registered as a registered instrument. The approval was effective from 1 July 2019, and the agreement was to remain in force until 30 June 2023. The Commission's decision emphasised the importance of ensuring that the ‘better off overall test’ was met and that procedural fairness was observed in the negotiation process.

TES Mechanical Electrical Qld 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