Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Summary

[2021] FWCA 5968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/7409)

NEXTGEN FIRE PROTECTION PTY LTD AND CEPU - PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2020-2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the Nextgen Fire Protection Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of an enterprise agreement known as the Nextgen Fire Protection Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[4] The CEPU, 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 its declaration, I note that the Agreement covers the CEPU.

[5] The Agreement was approved on 23 September 2021 and, in accordance with s 54, will operate from 30 September 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to the Fair Work Commission for the approval of a proposed enterprise agreement. The agreement in question was between Nextgen Fire Protection Pty Ltd and the CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023. The union sought to have the agreement certified as a single-enterprise agreement, which would allow it to be registered and enforceable under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement met the criteria for a single-enterprise agreement as outlined in the Fair Work Act. Specifically, the Commission had to determine if the agreement was made between an employer and a relevant union, and if it covered employees of the employer who were members of the union. Furthermore, the Commission had to assess whether the agreement met the 'better-off-overall test', which requires that the terms and conditions of employment in the agreement be no less favourable to the employees than those provided for under their previous agreement or the applicable awards or the general law.

The Commission found that the proposed agreement satisfied all the necessary criteria for a single-enterprise agreement. The agreement was made between Nextgen Fire Protection Pty Ltd and the CEPU - Plumbing Division (Vic) Fire Protection, covering employees who were members of the union. The Commission was satisfied that the agreement met the better-off-overall test, as it provided employees with terms and conditions that were at least as favourable as those provided for under their previous agreement or the applicable awards or the general law. The Commission also noted that the agreement contained provisions that were in line with the objectives of the Fair Work Act, including provisions for a fair and efficient workplace and the promotion of harmonious, productive and cooperative workplace relations.

In light of the above findings, the Commission approved the proposed enterprise agreement. The agreement was registered and became enforceable under the Fair Work Act. The union's application for approval of the Nextgen Fire Protection Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 was therefore successful.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established