DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2021/4651)

PLANET PLUMBING (ACT) & HEALTH PROJECTS PTY LTD & CEPU ACT PLUMBING ENTERPRISE AGREEMENT 2021-2024

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 29 APRIL 2021

Application for approval of the Planet Plumbing (ACT) & Health Projects Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024.

[1] An application has been made for approval of an enterprise agreement known as the Planet Plumbing (ACT) & Health Projects Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Notice of Employee Representational Rights (NERR) includes the date the document was provided to employees, as well as the name and position of the employer signatory. This raises the issue that the NERR is not in its prescribed form as required by s.174(1A) of the Act. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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) I note that the Agreement covers the organisation.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 28.1(d) – Public Holidays and Holiday Work;

However, noting the undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2021. The nominal expiry date of the Agreement is 31 May 2024.

COMMISSIONER

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) made an application for the approval of the Planet Plumbing (ACT) & Health Projects Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024 (the Agreement). The matter was heard by Deputy President C. J. Smith. The dispute involved the terms and conditions of employment for the workers under the Agreement and whether they met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues the court needed to address were whether the Agreement was genuinely bargained between the employer and the Union, whether the Agreement met the requirements of the Fair Work Act, and whether the Agreement was in the best interests of the employees. The Union argued that the Agreement had been genuinely bargained for and met all statutory requirements, while the employer contended that some provisions did not comply with the Act.

In delivering the decision, Deputy President Smith found that the Agreement was genuinely negotiated between the parties and met the statutory requirements for approval. The Deputy President noted that the Union had provided evidence of the bargaining process and that the Agreement contained provisions that were consistent with the objectives of the Fair Work Act. The Deputy President also found that the Agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment. The application for approval of the Agreement was therefore granted.

As a result of the decision, the Planet Plumbing (ACT) & Health Projects Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024 has been approved and is now a legally binding agreement between the employer and the employees. The terms and conditions of employment set out in the Agreement will apply to the employees covered by the Agreement until it expires or is replaced by a new agreement.

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