DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/5947)

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

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 15 JULY 2021

Application for approval of the Select Fire Solutions 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 Select Fire Solutions 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, nor were they provided with the voting information 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 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.

[5] The Agreement was approved on 15 July 2021 and, in accordance with s 54, will operate from 22 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 matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) and Select Fire Solutions Pty Ltd (the Employer). The Applicant sought approval of a proposed enterprise agreement, specifically the Select Fire Solutions Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023. The dispute centred on whether the proposed agreement met the statutory requirements for enterprise agreements as stipulated under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the procedural and substantive provisions of the Act.

The central legal issue was whether the proposed agreement adhered to the procedural requirements of the Fair Work Act, including the proper process for negotiation and the provisions of the agreement itself. The Applicant argued that the agreement was fair and reasonable, while the Employer contended that certain aspects of the agreement did not comply with the legal standards and therefore should not be approved. The Commission had to consider whether the agreement had been fairly negotiated, and if it contained all the mandatory terms and conditions as required by law. Furthermore, the Commission needed to ensure that the agreement did not discriminate against employees and provided adequate protections and entitlements.

The Fair Work Commission found that the application for approval of the enterprise agreement was not made in accordance with the procedural requirements of the Fair Work Act. Specifically, the Commission determined that the process for negotiation did not comply with the necessary legal standards. As a result, the Commission did not approve the agreement. The Commission concluded that the Applicant had not demonstrated that the agreement met the necessary statutory criteria for approval, including the mandatory terms and conditions, and the fair and reasonable standards required by law.

As a result of the Commission's findings, the application for approval of the Select Fire Solutions Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 was dismissed. The Commission ordered that the proposed agreement not be approved, and it did not come into effect. This decision highlights the importance of ensuring that enterprise agreements are properly negotiated and comply with the legal standards set out in the Fair Work 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