Ventia T/A Ventia

[2022] FWCA 1801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia T/A Ventia

(AG2022/1149)

Ventia Infrastructure Services and ETU Enterprise Agreement 2021-2025

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 1 JUNE 2022

Application for approval of the Ventia Infrastructure Services and ETU Enterprise Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the Ventia Infrastructure Services and ETU Enterprise Agreement 2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ventia T/A Ventia. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 19.2, 19.4(a), 20.1(f), 23.2(g) and 34.4(ii) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.1 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. Further, clause 23.1(d)(iv) is inconsistent with s.90(2) of the Act, however, noting clause 4.1 of the Agreement, employees are entitled to payment of leave loading on termination of employment when terminated pursuant to clause 20.2 of the Agreement.

The Communications, Electrical and Plumbing 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.

The Agreement is approved and in accordance with s.54, will operate from 8 June 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Ventia T/A Ventia applied for approval of the Ventia Infrastructure Services and ETU Enterprise Agreement 2021-2025. The ETU had entered into the agreement on behalf of its members employed by Ventia, and the application was for the agreement to be registered as a single-employer enterprise agreement. The dispute arose as Ventia sought to have the agreement approved and registered to formalise the terms of employment for its employees covered by the agreement.

The central legal issue for the Commission to determine was whether the agreement met the statutory criteria for approval and registration as a single-employer enterprise agreement under the Fair Work Act 2009. This involved assessing whether the agreement had been made in good faith, and whether it provided for the terms and conditions of employment of the employees covered by the agreement, among other requirements. The Commission also needed to consider whether the agreement provided for appropriate mechanisms for the resolution of disputes between the parties.

The Fair Work Commission found that the agreement had been made in good faith and met the requirements for approval and registration. The Commission was satisfied that the agreement provided for the terms and conditions of employment of the employees covered by the agreement and that it included appropriate mechanisms for the resolution of disputes. The Commission noted that the agreement had been negotiated over a significant period and that the parties had made considerable efforts to reach an agreement that was acceptable to both sides. The Commission approved the agreement and ordered that it be registered as a single-employer enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established