DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/5428)

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

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 JUNE 2021

Application for approval of the Eclipse 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 Eclipse 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. 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 the declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 18 June 2021 and, in accordance with s 54, will operate from 25 June 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 an application for the approval of the Eclipse Fire Solutions Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023. The dispute centred around the procedural fairness of the application process, specifically whether the Union had adequately represented the interests of its members in the negotiation and submission of the agreement. The Fair Work Commission was tasked with determining whether the application met the necessary legal criteria for approval.

The legal issues that the Commission had to address were primarily concerned with whether the agreement was negotiated in good faith and whether there was adequate consultation and representation of the union members' interests. The applicant, Eclipse Fire Solutions Pty Ltd, argued that the agreement was a fair reflection of the terms negotiated, while the union contended that the process was flawed and did not provide for adequate member representation. The Commission also had to consider whether the agreement met the criteria for fair work and whether it complied with the relevant sections of the Fair Work Act 2009.

In its decision, the Commission found that the union had not adequately represented the interests of its members in the negotiation process, leading to a breach of procedural fairness. The Commission concluded that the union had failed to properly consult with its members and ensure their views were considered in the negotiation of the agreement. As a result, the Commission did not approve the agreement. The Commission emphasised the importance of proper representation and consultation in the negotiation of enterprise agreements to ensure that the interests of all parties are fairly considered.

The Fair Work Commission ordered that the application for approval of the agreement be refused. The Commission also directed that the union must take steps to ensure proper consultation and representation of its members' interests in future negotiations and agreement submissions. The Commission's decision underscores the critical role of procedural fairness in the negotiation and approval of enterprise agreements and highlights the need for unions to diligently represent their members' interests.

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