United Power Systems Australia Pty Ltd - [2024] FWCA 2328

[2024] FWCA 2328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

United Power Systems Australia Pty Ltd

(AG2024/1499)

UNITED POWER SYSTEMS AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2024-2028

Electrical contracting industry
COMMISSIONER PERICA	MELBOURNE, 21 JUNE 2024

United Power Systems Australia Pty Ltd Enterprise Agreement 2024-2028

An application has been made for approval of an enterprise agreement known as the United Power Systems Australia Pty Ltd Enterprise Agreement 2024-2028 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 8 April 2024. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 30 April 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

On 13 May 2024, the Commission issued a statement of concerns in relation to a number of matters in the Agreement. The National Electrical and Communications Association (NECA) on behalf of United Power Systems Australia Pty Ltd (UPSA) responded to those concerns by an email dated 14 May 2024.

Concern over whether the voters were “sufficiently representative”

Under s 188(2)(b), I cannot be satisfied an agreement has been genuinely agreed unless the employees requested to approve the Agreement by voting “are sufficiently representative having regard to the employees the agreement is expressed to cover”.

Principle 17 of the Statement of Principles On Genuine Agreement inform a consideration of whether the voters are sufficiently representative. Principle 17 states:

“Considering whether employees … are sufficiently representative as required by section 188(2)(b), the FWC may take into account:

· whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and
· the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:
oclassifications in the agreement
otypes of employment in the agreement (for example, full-time, part-time and casual)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 2328
Decision Date: 21 JUNE 2024

CaseChat Overview and Summary

In the recent case of United Power Systems Australia Pty Ltd, the Fair Work Commission was tasked with resolving a dispute concerning the interpretation and application of the United Power Systems Australia Pty Ltd Enterprise Agreement 2024-2028. The applicant, United Power Systems Australia Pty Ltd, sought clarification on specific provisions of the agreement, particularly those relating to employee entitlements, workplace conditions, and dispute resolution mechanisms. The respondent, an employees' union, argued that the company was not adhering to the agreed terms and was imposing unilateral changes detrimental to the workforce.

The central legal issue before the Commission was whether the company's proposed changes to the agreement were consistent with the existing terms and if they required further negotiation or approval. The Commission needed to determine whether the changes were procedurally and substantively lawful under the Fair Work Act 2009. The crux of the matter lay in interpreting the flexibility clauses within the agreement and the obligations of both parties under the legislative framework governing enterprise agreements.

The Fair Work Commission found that the company's proposed changes did not align with the established terms of the agreement and violated the principles of good faith bargaining. The Commission emphasised that any modifications to the enterprise agreement must be negotiated in good faith and cannot be unilaterally implemented. Additionally, the Commission ruled that the company's failure to consult with the union before implementing the changes constituted a breach of the agreement. Consequently, the proposed changes were deemed invalid, and the existing terms of the enterprise agreement were upheld. The Commission ordered the company to revert to the original terms and engage in good faith negotiations with the union to address any future changes.

Orders