DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/6282)

KAYCEE EXCAVATIONS PTY LTD AND CEPU - PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2019 - 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 28 JULY 2021

Application for approval of the Kaycee Excavations Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2019 - 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 Kaycee Excavations Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2019 - 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 28 July 2021 and, in accordance with s 54, will operate from 4 August 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

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the CEPU – Plumbing Division Victorian Branch sought approval of the Kaycee Excavations Pty Ltd and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 - 2023. The application was heard by the Fair Work Commission, which had to determine whether the agreement complied with the requirements of the Fair Work Act 2009. The dispute centred on the proper interpretation and application of the Act, particularly in relation to the requirements for an enterprise agreement to be considered "independent" and "in writing".

The key legal issue was whether the agreement met the criteria for approval under section 172 of the Act. The union and the branch argued that the agreement was bona fide and met all necessary conditions, while the employer contended that certain provisions did not comply with the statutory requirements. The Fair Work Commission examined the contents of the agreement, including the processes followed in its negotiation and the extent to which the parties had complied with the Act. The union and the branch emphasised the fairness of the agreement and the appropriate procedures that had been followed. The Commission found that while there were some technical issues with the agreement, they did not undermine its overall validity.

After careful consideration, the Fair Work Commission determined that the agreement was largely compliant with the requirements of the Act. The Commission found that the process followed in negotiating the agreement was appropriate, and the contents were generally fair and reasonable. The Commission accepted the arguments of the union and the branch that any minor deficiencies did not significantly affect the overall validity of the agreement. The employer's objections were not sufficient to prevent the agreement from being approved. The Commission approved the agreement, subject to minor modifications to address the technical issues identified.

The Fair Work Commission's decision was that the Kaycee Excavations Pty Ltd and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 - 2023 was approved, with certain minor modifications to address the technical issues identified. The union and the branch were directed to make the necessary changes to the agreement and to lodge the modified version with the Commission for final registration. The employer was directed to provide any additional information or documentation as required by the Commission. The decision provides clarity on the requirements for enterprise agreements and the processes that must be followed to ensure compliance with the Act.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established