DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/5327)

ULTIMATE AIRCONDITIONING (AUST) AND CEPU - PLUMBING DIVISION (VIC) PLUMBING ENTERPRISE AGREEMENT 2019 - 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 JUNE 2021

Application for approval of the Ultimate Airconditioning (Aust) and CEPU - Plumbing Division (Vic) 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 Ultimate Airconditioning (Aust) and CEPU - Plumbing Division (Vic) 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 employees were not provided with 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 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 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 2 June 2021 and, in accordance with s 54, will operate from 9 June 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the Ultimate Airconditioning (Aust) and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023. The dispute arose between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ultimate Airconditioning (Aust) Pty Ltd. The application was heard in the Fair Work Commission, the body responsible for overseeing and approving enterprise agreements under the Fair Work Act 2009. The union sought to have the proposed enterprise agreement recognised as a valid and binding agreement between the employer and the employees, while the employer contested certain provisions of the agreement.

The central legal issues before the court were whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act 2009 and whether it had been made in accordance with the procedural requirements of the Act. Specifically, the court had to determine whether the agreement was genuinely made by the parties without any duress or coercion and whether the agreement was fairly negotiated and in the best interests of the employees. Additionally, the court considered whether the agreement contained the necessary minimum entitlements as prescribed by the Act and if any provisions were contrary to public policy.

In delivering its decision, the court examined the evidence presented by both parties and the provisions of the proposed agreement. The court found that the agreement was genuinely negotiated and made without any undue influence or coercion. Furthermore, the court determined that the agreement contained the minimum entitlements required by the Fair Work Act 2009 and did not contravene any public policy. The court also considered the overall fairness of the agreement, taking into account the interests of both the employer and employees. Based on this analysis, the court approved the proposed enterprise agreement, finding it to be in compliance with the statutory and procedural requirements of the Act.

Consequently, the court ordered the approval of the Ultimate Airconditioning (Aust) and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023, recognising it as a valid and binding agreement between the employer and employees. This decision ensures that the agreement will be enforceable and will govern the employment terms and conditions of the employees during the specified period.

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