eNews

September 2009

NECA appeals perilous interpretation which poses severe threat to industry
NECA has supported Queensland member-company Blue Star Pacific Pty Ltd in its appeal to the full bench of the Federal Court on Friday 7 August, against the decision made in June.

Justice Reeves of the Federal Court determined Blue Star Pacific had not given its employees a reasonable opportunity to decide whether they wanted to approve the company's proposed employee agreement, which was due to operate for four years from 2009 to 2013.

NECA national chief executive officer, James Tinslay says, "The decision has serious implications for employers negotiating collective agreements throughout Australia and, with the introduction of the new Fair Work Act 2009 (Cth), opens the door for unions to pressure companies to take up union agreements. It is therefore important for NECA to support an appeal against this decision on behalf of all our members."

Reeves J handed down his decision in the case of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) v Blue Star Pacific Pty Ltd [2009] FCA 750 on 30 June 2009. In the case, the CEPU contested that Blue Star Pacific had not given its employees reasonable opportunity to decide to approve the agreement as there was no opportunity for them to meet and confer as a collective group.

Blue Star Pacific is an electrical contracting company with 59 employees based in South East Queensland. In February this year, Blue Star Pacific sought to obtain approval from its employees for its proposed employee collective agreement by a postal ballot that concluded on 20 February. Despite Justice Reeves Decision, NECA and Blue Star Pacific maintain the process used was in accordance with the WR Act.

Reeves J concluded that the Blue Star Pacific Employee Agreement 2009-20013 had not been validly approved pursuant to s340 of the WR Act as Blue Star Pacific neglected to provide its employees with an opportunity to meet together at the same time and place to discuss the proposed agreement as a group.

NECA maintains that this finding represents an incorrect interpretation of the WR Act and an error in law. It is for this reason that NECA will fight the appeal as the WR Act does not require a collective meeting of employees to approve an employee collective agreement.

Mr Tinslay says, "Nowhere does the Workplace Relations Act stipulate how, where or what employers need to provide their employees in terms of an opportunity to approve an agreement. There was, in fact, a strong move away from language that implied the need for collective decision-making in the WR Act when the legislation was amended in 2006."

"This decision will have wide-ranging implications for both union and non-union agreements being approved across Australia, including for many NECA members," he said. "It follows that agreements already lodged and found to have been approved without a collective meeting of employees - as Justice Reeves now interprets is required by the WR Act - will be void and employers may be subject to a penalty of up to $33,000. This is grossly unfair for our members and all employers who have entered the process of negotiating collective agreements in good faith under the terms of the WR Act. It is therefore important that we represent our members to appeal the decision."

Mr Tinslay adds, "The decision also paves the way for unions to attempt to void past non-union collective agreements and pressure companies into taking up union agreements under the Federal Government's new Fair Work Act. While we recognise the important role unions play in our industry, we need to stand by our members to ensure that the involvement the unions have in negotiating collective agreements remains reasonable."

Dangers of inadequate insurance
It pays to be protected with the right insurance. The following real example shows how insurance can mean the difference between a viable, sustainable business and one which could find itself in unexpected financial difficulty.

A small electrical contractor dismissed its site manager from his employment on the basis of ongoing performance issues, which had been addressed verbally and in writing with the company owner (and sole shareholder) over a 12-month period. Notwithstanding several attempts to provide him with support, he was dismissed. He subsequently lodged a complaint with the State Industrial Relations Commission.

The claim was settled at a cost of $37,000 and defence costs incurred by the company amounted to a further $21,000.

NECAGuard's Master Management Liability, which is specifically designed to protect electrical contractors, provides protection for this type of incident and also includes additional cover for:

• Employee theft of cash
• OH&S prosecution
• Employee harassment
• ACCC investigations
• Cover for the individual director as well as the company.

NECA strongly recommends that members protect themselves with the right insurance. If you would like information on this cover, or other insurance products, please contact the NECAGuard team and Brookvale Insurance Brokers on 1800 638 554.

Sales ban of inefficient air conditioners in Queensland
Members in Queensland who are engaged in the supply and installation of air conditioners should be aware that new amendments to the Electricity Regulation 2006 and associated regulations now ban the sale of inefficient air conditioners from 1 September 2009.

The change has come about following a process of community consultation and feedback. The Improving Sustainable Housing in Queensland discussion paper released by the Queensland Government on 15 June 2008 sought community feedback on a proposal to increase mandatory energy efficiency requirements for air conditioners. Preventing the sale and installation of inefficient air conditioners received the highest level of community support of all the proposed measures and was strongly supported by energy providers and housing industry stakeholder organisations.

On 14 December 2008 Premier Anna Bligh announced the approved sustainable housing measures, including the ban on the installation of inefficient air conditioners from 1 July 2009. On 25 June 2009, as a result of industry feedback, the implementation date for the installation ban was extended from 1 July to 1 September 2009. This provided distributors and manufacturers with a further two months to clear non-compliant stock.

The sale and installation bans apply to single phase (ie. 240 volt systems most commonly used in properties to operate appliances and small motors) air conditioners and three-phase (ie. 400 volt systems typically used to efficiently run larger electric motors and appliances) air conditioners up to 65 kW in output capacity, which are required to have a tested average EER under the relevant Australian Standard. This includes split systems, ducted systems and window units. Air conditioning systems above 65kW are not captured by the new requirement and are regulated by the Building Code of Australia.

The Electrical Safety Office (ESO), the electricity regulator in Queensland, has powers to enforce the sales ban in accordance with the Electrical Regulation 2006. The maximum penalty for non-compliance is 20 penalty units (currently $2000). Local governments have powers to enforce Building Act 1975 compliance, including the installation ban, under the Integrated Planning Act 1997. The maximum penalty for non-compliance is 165 penalty units (currently $16,500).

For further information:

A fact sheet on air conditioning has been updated to correspond with the Queensland Government's 'For the greener good' campaign. The fact sheet is available at http://www.forthegreenergood.qld.gov.au.

The Queensland Development Code Mandatory Part 4.1-Sustainable buildings guideline has been updated to assist industry and homeowners understand the new air conditioner requirements and provides information on how to reduce reliance on air conditioners within Queensland homes. It will be available on the department's website soon.

In collaboration with the Commonwealth Department of Environment, Water, Heritage and the Arts (DEWHA), the department has modified the spreadsheet which outlines the tested average EER of all air conditioner models currently registered in Australia. Column 'AT' (EERMEPSLev) has been updated and now reflects the tested average EER value that will be used to determine compliance with the 2.9 tested average EER standard in Queensland. This spreadsheet is available on DEWHA's website at http://www.environment.gov.au.

Contact for further information: Department of Infrastructure and Planning, Building Codes Queensland Division, Telephone 07 3239 6369 or email .(JavaScript must be enabled to view this email address).

Or contact NECA Queensland on 1300 794 846.