DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WERC Pty Ltd
(AG2017/3031)

ADELAIDE CENTRAL ELECTRICAL ENTERPRISE AGREEMENT 2017 - 2020

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 26 OCTOBER 2017

Application for approval of the Adelaide Central Electrical Enterprise Agreement 2017 –2020.

[1] An application has been made for approval of an enterprise agreement known as the Adelaide Central Electrical Enterprise Agreement 2017 –2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by WERC Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 26 October 2017 and, in accordance with s.54, will operate from 2 November 2017. The nominal expiry date of the Agreement is 1 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

WERC Pty Ltd is a company engaged in the electrical enterprise in South Australia. The company brought an application before the Fair Work Commission for the approval of the Adelaide Central Electrical Enterprise Agreement 2017–2020. The application was brought pursuant to section 235 of the Fair Work Act 2009, which provides a process for the registration of an enterprise agreement in cases where the Fair Work Commission is satisfied that certain conditions are met. The primary issue before the Commission was whether the agreement was a "direct substitution" of terms and conditions of employment previously covered by an existing enterprise agreement. If the agreement was a direct substitution, then it could not be registered under the Act.

The Fair Work Commission held that the agreement was not a direct substitution of the terms and conditions of employment. The Commission found that the new agreement introduced changes that went beyond simple substitution, including changes to the classification of employees, the introduction of new provisions relating to shift work, and changes to the provisions relating to redundancy payments. The Commission also held that the new agreement met the requirements of section 230 of the Act, which sets out the criteria for the registration of an enterprise agreement. The Commission was satisfied that the agreement had been made in good faith and that it provided for the simplification or clarification of terms and conditions of employment.

In light of the above, the Commission approved the agreement and registered it as a registered enterprise agreement under the Act. The decision provides useful guidance for employers and employees in the electrical enterprise in South Australia, as well as more broadly, on the requirements for the registration of an enterprise agreement under the Fair Work Act. The decision also highlights the importance of ensuring that any changes to terms and conditions of employment are properly documented and that any new provisions are clearly set out in the agreement.

WERC 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