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Application for Approval of ADJ Contracting Pty Ltd Enterprise Agreement 2010 - 2014


Case number: AG2011/364 
Applicant(s): ADJ Contracting Pty Ltd 
Respondent(s): NA 
Site: NA 
Jurisdiction: Fair Work Australia 
Before: Senior Deputy President Acton 
Hearing date:
4 April 2011, 28 April 2011
Intervention filed on: 30 March 2011 

The National Electrical and Communications Association (NECA) and the Electrical Trades Union (ETU) finalised a standardised framework agreement for electrical contractors in January 2011. ADJ Contracting Pty Ltd is the first electrical contractor to use the agreement as its template and has submitted it to Fair Work Australia (FWA) for approval.

The ABCC made a submission to FWA arguing that a number of provisions of the ADJ Contracting Pty Ltd agreement, which is based on the deal struck between the ETU and NECA earlier this year, may contravene sections of the Fair Work Act 2009 (FW Act).

The ABCC submitted that if a clause promoting membership of a specified union is an unlawful term under the FW Act, the agreement should not be approved. Alternatively, if the clauses relating to contracting, workplace entry or meeting participation are objectionable or unlawful terms under the FW Act, a written notation should be incorporated in the agreement that the term is objectionable or unlawful and is legally of no effect upon the parties signing up to it.

On 28 April 2011 Fair Work Australia (FWA) substantially rejected the submissions made and approved the agreement. The submissions and FWA's decisions are outlined below.        

  1. Limitations on an employer’s capacity to contract work without the approval of the union: Clauses 4.3(b)(v) and (vi) are objectionable terms and unlawful terms within the meaning of the FW Act because they permit a contravention of sections 354(1)(a)(iii) and/or section 354(1)(b)(ii) of the FW Act. FWA held that the clauses were concerned with wages and conditions not whether an enterprise agreement covered the contractor.
  2. Allowing right of workplace entry inconsistent with the FW Act: Clause 15.2(k) allows for workplace entry not in accordance with Part 3-4 of the FW Act (i.e. without giving the requisite notice). Accordingly, any requirement in clause 15 providing right of entry by ETU officials is an unlawful term. FWA decided the clause provided representation entry under the agreement’s dispute settlement clause and not for so-called right of entry access under the FW Act. FWA acknowledged a concern about a right of entry dispute (Part 3-4 FW Act) being dealt with under the agreement rather than the FW Act (Division 5, part 3-4 FW Act). To this end FWA sought undertakings from the employer and union that any dispute about right of entry (for inspection or discussion purposes or OH&S) would be dealt with in accordance with Part 3-4 of the FW Act (the right of entry provisions).
  3. Promotion of ETU membership to employees: Clause 16.6(b) provides that "Union membership shall be promoted by the Employer to all prospective and current Employees". The expression "union" is defined in the agreement to mean the ETU. Therefore the clause imposes an obligation to promote ETU membership amongst its employees and prospective employees in breach of s350 of the FW Act. FWA decided on the words that the provision was not in breach of the FW Act .
  4. Employee participation in ETU union meetings: Clause 16.6(d) encourages union participation among members. The clause may impose an unqualified obligation upon an employer to encourage employees who are members of the ETU to participate in union meetings, including where attendance may constitute unlawful industrial action under Part 3-3 of the FW Act. FWA decided on the words that the provision was not in breach of the FW Act.

The ABCC will consider the decision.