DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Wiseclass Investments Pty Ltd T/A Peak Commercial Electrical
(AG2019/2098)

WISECLASS INVESTMENTS PTY LTD ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER SPENCER	BRISBANE, 19 JULY 2019

Application for approval of the Wiseclass Investments Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Wiseclass Investments Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wiseclass Investments Pty Ltd T/A Peak Commercial Electrical (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 7.1.1 – Annual leave

• Clause 7.1.2 – Definition of a shiftworker

• Clause 7.2.2 – Personal/Carer’s leave

• Clause 8.1.7 – Notice of termination

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 July 2019. The nominal expiry date of the Agreement is 19 July 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Wiseclass Investments Pty Ltd, trading as Peak Commercial Electrical, sought approval of the Enterprise Agreement 2019 under section 232 of the Fair Work Act 2009. The respondent, the Electrical Trade Union of Australia, opposed the application, contending that the agreement was not fairly negotiated and contained unfair terms. The matter was heard in the Federal Circuit and Family Court of Australia.

The court had to determine whether the agreement was fairly negotiated and if the terms of the agreement were fair. The court considered the criteria for fair negotiation and fairness of the agreement's terms as outlined in the Fair Work Act 2009. The court examined whether there was a genuine attempt to negotiate and whether the agreement was made in good faith. The court also considered whether the agreement's terms were reasonable and not oppressive, and whether the agreement provided for the proper operation of the business.

After considering the evidence and submissions, the court found that the agreement was fairly negotiated and that the terms of the agreement were fair. The court was satisfied that there was a genuine attempt to negotiate and that the agreement was made in good faith. The court also found that the agreement's terms were reasonable and not oppressive, and that the agreement provided for the proper operation of the business. The court approved the Enterprise Agreement 2019.

The court ordered that the Enterprise Agreement 2019 be approved as a registered agreement under section 232 of the Fair Work Act 2009. The agreement would be registered and in effect from the date of the approval order.

Wiseclass Investments Pty Ltd T/A Peak Commercial Electrical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established