CC P & D (Aust) Pty Ltd

[2024] FWCA 2293

[2024] FWCA 2293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CC P & D (Aust) Pty Ltd

(AG2024/2016)

CC P & D (AUST) PTY LTD – WA - ENTERPRISE AGREEMENT 2024-2026

Plumbing industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 20 JUNE 2024

Application for approval of the CC P & D (Aust) Pty Ltd – WA - Enterprise Agreement 2024-2026

1. CC P & D (Aust) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the CC P & D (Aust) Pty Ltd – WA - Enterprise Agreement 2024-2026 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. Recent amendments to Part 2-4 of the Act and the new Fair Work Statement of Principles on Genuine Agreement Instrument 2023 (SoP) allow the Commission some latitude in assessing whether an agreement was genuinely agreed to by employees.  The Commission must ‘take into account’ the SoP; however, the principles themselves are generally not categorical in nature.  This latitude is to be understood in the context of s 188(5) which allows the Commission, in determining whether it is satisfied that an agreement has been genuinely agreed, to disregard only ‘minor’ procedural or technical errors that are not likely to have disadvantaged employees.

1. Paragraph 4 of the SoP states that an employer should provide employees with a ‘reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that employees can vote in an informed manner’.  An employer will be taken to have done so if, seven full calendar days before the day on which the voting starts, it provides employees with a full copy of the agreement and any material incorporated by reference (paragraphs 5 and 6 of the SoP).  In this case, employees received the final copy of the Agreement on 22 May 2024 and the following day, on 23 May 2024, the voting period began.  As there was a minimal period between the employees’ receipt of the Agreement and the start of the vote, there is a question as to whether employees had any opportunity to consider the agreement before voting on it.  It is noted that at question 25 of the Form F17B, it states that it was agreed by all (employees, employer, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)) that the seven day period was not required.  The CEPU have supported the approval of the Agreement, and, in addition, the Applicant has provided evidence that the employees were agreeable to the timeframe between receipt of the Agreement and the vote.  As such, I find that a ‘reasonable time period’ was provided as contemplated by principle 6(b) of the SoP. 

1. The Agreement title in the notice of employee representation rights (NERR) read as (CC P & D (Aust) Pty Ltd Enterprise Agreement 2024-2026) which differed from the title at clause 1 of the Agreement (CC P & D (Aust) Pty Ltd – WA - Enterprise Agreement 2024-2026). The Applicant explained that a typographical error had been made in respect of the NERR. Insofar as there was an error in this respect, I am satisfied that employees were not disadvantaged by the error, and it is an error that can be disregarded as provided by s 188(5)(a) of the Act.

1. The Applicant has provided written undertakings.  A copy of the undertakings is attached in Annexure A.  I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. The CEPU (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 20 June 2024 and, in accordance with s 54, will operate from 27 June 2024.  The nominal expiry date of the Agreement is 30 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE525121  PR776231>

Annexure A