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

[2021] FWCA 5871

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
(AG2021/7310)

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

Fire fighting services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 SEPTEMBER 2021

Application for approval of the Bayside Fire Services 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 Bayside Fire Services 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 22 September 2021 and, in accordance with s 54, will operate from 29 September 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought an application for the approval of an enterprise agreement. The agreement in question was between Bayside Fire Services Pty Ltd and the CEPU - Plumbing Division (Vic). The dispute centred on whether the proposed agreement met the necessary requirements for approval under the Fair Work Act 2009. The Commission was tasked with determining if the agreement contained all the mandated terms and conditions, and if it was made in good faith and without the coercion of any party.

The legal issues before the Commission involved scrutinising the terms of the proposed enterprise agreement to ensure it adhered to the provisions of the Fair Work Act. Key concerns included whether the agreement had been genuinely negotiated, if it contained all the mandated terms and conditions, and whether it was fair and reasonable. The Commission also had to consider if the agreement was in the best interests of the employees and if it complied with the procedural requirements for approval.

In assessing the application, the Commission examined the negotiation process and the content of the proposed agreement. The Commission found that the agreement had been genuinely negotiated between the parties and that it contained all the required terms and conditions. The Commission was satisfied that the agreement was fair and reasonable, and that it met the legislative requirements for approval. The Commission approved the agreement, noting that it was in the best interests of the employees and that it complied with all necessary legal standards.

The Commission's decision resulted in the Bayside Fire Services Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 being formally approved. This approval ensures that the agreement is legally binding and can be implemented between the parties. The decision underscores the importance of genuine negotiation and compliance with statutory requirements in the formation of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established