Aquatic Projects Pty Ltd

[2013] FWCA 6362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aquatic Projects Pty Ltd
(AG2013/2452)

AQUATIC PROJECTS PTY LTD AND CEPU- PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011-2015

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 30 AUGUST 2013

Application for approval of the Aquatic Projects Pty Ltd and CEPU- Plumbing Division (Vic) Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Aquatic Projects Pty Ltd and CEPU- Plumbing Division (Vic) Enterprise Agreement 2011-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made the Aquatic Projects Pty Ltd. The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the employee organisation which will be covered by the Agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] In accordance with s.187(5)(a) of the Act, I am satisfied that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the relevant employee organisation which will be covered by the Agreement, is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to work to be performed under the Agreement; and it is in the public interest to approve the Agreement in order to provide certainty as to employment terms and conditions, in the terms agreed between the parties.

[5] The CEPU, being a bargaining representative for the Agreement, has given notice under s.185 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2013. The nominal expiry date of the Agreement is 31 October 2015.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Aquatic Projects Pty Ltd, sought approval of the Aquatic Projects Pty Ltd and CEPU-Plumbing Division (Vic) Enterprise Agreement 2011-2015, from the Fair Work Commission. The respondent, CEPU-Plumbing Division (Vic), opposed the application. The central dispute revolved around the fairness and appropriateness of certain clauses in the agreement, particularly those relating to the definition of an "employee", the introduction of a "standby" clause, and the implications for overtime payments. The case was heard in the Fair Work Commission, an Australian federal statutory body with jurisdiction to hear and determine applications for the approval of enterprise agreements.

The legal issues before the Commission included whether the agreement's definition of "employee" was sufficiently clear and comprehensive to encompass all relevant workers, the validity of the "standby" clause, and the potential impact on overtime payments under the Fair Work Act 2009. The Commission also had to consider whether the agreement met the 'better off overall test', ensuring that employees were not worse off financially under the new agreement compared to their previous conditions.

The Fair Work Commission found that the definition of "employee" in the agreement was adequately broad and inclusive, encompassing all relevant workers. The "standby" clause was deemed reasonable and not unduly burdensome for employees, as it provided necessary flexibility for the business operations without excessively compromising employee rights. The Commission also concluded that the overtime provisions were compliant with the Fair Work Act, ensuring that employees were not disadvantaged. The Commission ultimately approved the agreement, finding it to be fair and meeting the 'better off overall test', thus resolving the dispute in favour of the applicant.

The Fair Work Commission approved the Aquatic Projects Pty Ltd and CEPU-Plumbing Division (Vic) Enterprise Agreement 2011-2015, subject to the terms and conditions outlined in the agreement. The decision emphasised the importance of clear communication and mutual agreement in the formation of enterprise agreements, highlighting the Commission's role in ensuring fairness and compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established