DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/5514)

JOHN R KEITH (NSW) PTY LTD & CEPU PLUMBING DIVISION - NSW BRANCH PLUMBING ENTERPRISE AGREEMENT 2019-2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 JUNE 2021

Application for approval of the John R Keith (NSW) Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing 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 John R Keith (NSW) Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing 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 notice of employee representational rights (NERR) issued to employees was not in the prescribed form. 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] The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[4] Subject to the undertaking referred to above, and 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, 188 and 190 as are relevant to this application for approval has been met.

[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 22 June 2021 and, in accordance with s 54, will operate from 29 June 2021. The nominal expiry date of the Agreement is 30 September 2023.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the John R Keith (NSW) Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2019-2023. The dispute arose between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of the employees, and John R Keith (NSW) Pty Ltd, the employer. The primary issue before the Commission was whether the agreement met the legal requirements for approval under the Fair Work Act 2009, particularly whether it was a genuine enterprise agreement and whether it was made in good faith.

The court had to determine whether the agreement complied with the procedural and substantive requirements set out in the Act. This included assessing whether the agreement was made by the employer and the union in good faith, whether it was genuinely negotiated, and whether it contained the necessary minimum terms and conditions as prescribed by law. Additionally, the Commission needed to ensure that the agreement did not undermine the protection of employees’ rights, particularly in relation to minimum rates of pay and conditions.

In its decision, the Commission considered the evidence presented by both parties and examined the terms of the agreement. It concluded that the agreement was made in good faith, was genuinely negotiated, and met all the statutory requirements for approval. The Commission found that the agreement contained all the necessary minimum terms and conditions and did not undermine the protection of employees’ rights. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with the Fair Work Act 2009.

The final orders of the Commission included the approval of the John R Keith (NSW) Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2019-2023, effective from the date of the decision. The agreement was registered on the Register of Approved Agreements, and the parties were directed to comply with its terms.

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