MEDIA STATEMENT - Fair Work Australia Decision
Media Statement - Fair Work Australia Decision
13 October 2011
The National Electrical and Communications Association (NECA) welcomes today’s important decision of the Full Bench of Fair Work Australia in the ADJ Contracting appeal matter which clarified whether certain provisions of the ADJ Contracting Enterprise Agreement constitute unlawful terms under the Fair Work Act 2009.
A majority of the Full Bench (SDP Harrison and Cmr Roe) upheld the validity of the 3 clauses and dismissed the appeal. SDP Richards disagreed with respect to clause 15.2 of the ADJ Agreement, but otherwise agreed with the other two members of the Full Bench.
Each of the three clauses that were the subject of the appeal, originated from bargaining claims pursued by the Electrical Trades Union (ETU) and not NECA. The clauses eventually agreed were significantly different to the original claims of the union. However, in every such negotiation there will be outcomes that one or other of the parties would prefer were not there.
The ADJ Contracting agreement was one of the first agreements made in the construction industry since the introduction of the Fair Work Act and at the time, NECA’s legal advice was that there was little clarity over these particular aspects of the Act. Indeed two of the clauses appeared to be contemplated by the Explanatory Memorandum which accompanied the Fair Work Bill.
NECA welcomed the opportunity for those particular clauses to be tested by Fair Work Australia to obtain clarity.
NECA and some of its members have been the subject of criticism from some quarters of the industry for agreeing to the clauses that have now been tested by Fair Work Australia. However, the majority of NECA members in Victoria, like most participants in the building and construction industry, are family owned small and medium enterprises.
As such these members are reluctant to risk the financial viability of their businesses in the face of large well resourced unions that vigorously pursue claims of this nature.
The decision of the Full Bench of Fair Work Australia provides the clarity on the operations of the Act with respect to these matters but legitimate issues of policy remain.
-ENDS-
NECA is the peak industry body representing the interests of electrical and communications contractors Australia-wide.