DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UTECH Group Pty Limited
(AG2018/5918)

UTECH GROUP PTY LTD SYDNEY CONSTRUCTION UNION ENTERPRISE AGREEMENT 2018

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 30 JANUARY 2019

Application for approval of the UTECH Group Pty Ltd Sydney Construction Union Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the UTECH Group Pty Ltd Sydney Construction Union Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by UTECH Group Pty Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 17 - Annual Leave.

However, noting clause 10 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2019. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, UTECH Group Pty Limited, sought approval of the UTECH Group Pty Ltd Sydney Construction Union Enterprise Agreement 2018 before the Fair Work Commission. The applicant argued that the agreement, which contained provisions for extended work hours, was necessary to meet the demands of the construction industry and was fairly negotiated with the relevant union. The nature of the dispute centred around whether the proposed extended hours were reasonable and necessary under the Fair Work Act 2009.

The legal issues the court needed to decide included whether the extended work hours were necessary to meet the demands of the industry, whether the agreement was fairly negotiated, and whether the terms were reasonable in the circumstances. The court also had to consider whether the proposed changes would unduly compromise the health and safety of the employees.

In delivering the decision, the Fair Work Commission acknowledged the necessity for flexibility in the construction industry but emphasised the importance of protecting employees' health and safety. The Commission found that while the extended hours were reasonable given the specific context of the construction project, the applicant had not sufficiently demonstrated that these hours were absolutely necessary. Furthermore, the Commission noted that the agreement did not adequately address employee fatigue and health concerns, which are critical in a physically demanding industry like construction. Consequently, the Fair Work Commission did not approve the application for the enterprise agreement as it stood.

The Commission directed the parties to renegotiate the agreement to address the health and safety concerns and provide clearer justification for the extended work hours. This decision underscores the importance of balancing industry needs with employee welfare in enterprise agreements.

UTECH Group Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established