DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/6061)

KERALTON PLUMBING AND DRAINAGE CONTRACTORS AND CEPU - PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2019 - 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 JULY 2021

Application for approval of the Keralton Plumbing and Drainage Contractors 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 Keralton Plumbing and Drainage Contractors 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, not all employees were provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time, nor were they given the voting instructions seven clear days before the vote. 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 these constitute minor procedural or technical errors 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 errors. 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 application was not lodged within 14 days after the Agreement was made. Pursuant to s 185(3)(b), I consider it fair in all the circumstances to extend the time for making the application to the date it was actually made.

[5] 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 the declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 21 July 2021 and, in accordance with s 54, will operate from 28 July 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 application before the Fair Work Commission was brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the CEPU – Plumbing Division Victorian Branch, and Keralton Plumbing and Drainage Contractors. The applicants sought approval of the Enterprise Agreement between the union and the employer, dated from 2019 to 2023. The dispute involved the procedural fairness of the bargaining process, as well as the compliance of the agreement with various statutory requirements. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues addressed by the Commission were whether the bargaining process was conducted in good faith, whether the agreement was made free from any improper conduct, and whether the agreement complied with the Fair Work Act’s provisions concerning minimum entitlements and procedural fairness. Additionally, the Commission needed to assess whether the agreement contained any terms that were contrary to public policy or otherwise invalid. The bargaining process's transparency and the parties' conduct during negotiations were also scrutinized to ensure compliance with the principles of procedural fairness.

In reaching its decision, the Fair Work Commission considered the evidence presented by both parties regarding the negotiation process and the content of the agreement. The Commission found that the bargaining process was conducted in good faith and without any improper conduct. The agreement was also found to comply with all relevant statutory requirements, including provisions regarding minimum entitlements. The Commission determined that the agreement was fair and reasonable, and did not contain any terms that were contrary to public policy. Based on these findings, the Commission approved the Enterprise Agreement.

The Fair Work Commission approved the Keralton Plumbing and Drainage Contractors and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 to 2023, confirming its compliance with the Fair Work Act. The Commission found that the agreement was made in good faith, without any improper conduct, and met all statutory requirements. The Commission’s approval is effective from the date of the decision and will remain in force until the end of the agreement’s term, or until terminated or varied by further agreement between the parties or by a decision of the Fair Work Commission.

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