[2021] FWCA 667
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2021/173)

FIRESAFE SPRINKLER SYSTEMS PTY LTD AND CEPU - PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2020–2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 FEBRUARY 2021

Application for approval of the Firesafe Sprinkler Systems 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 Firesafe Sprinkler Systems 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] 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.

[3] The notice of employee representational rights was not provided to all employees within 14 days after the notification time for the Agreement, as required by s 173(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the 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 are not likely to have been disadvantaged by the error.

[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 12 February 2021 and, in accordance with s 54, will operate from 19 February 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Firesafe Sprinkler Systems Pty Ltd. The union sought approval of an enterprise agreement with the company. The application was heard in the Fair Work Commission. The legal issues that arose in the case centred on the compliance of the agreement with the provisions of the Fair Work Act 2009, particularly the requirement that the agreement must not predetermine the outcome of a future enterprise bargaining dispute. The union argued that the agreement was necessary to address a significant skills shortage in the industry and ensure that employees were fairly compensated. The company, on the other hand, argued that the agreement was too prescriptive and would limit its ability to operate effectively.

The Fair Work Commission found that the agreement did not predetermine the outcome of future enterprise bargaining disputes and was therefore compliant with the Act. The Commission noted that the agreement provided for a process to be followed in the event of a dispute, including the possibility of arbitration. The Commission also found that the agreement was necessary to address the skills shortage in the industry and that the provisions regarding wages and conditions were fair and reasonable. The Commission approved the agreement, subject to certain minor modifications.

The Fair Work Commission's decision highlights the importance of ensuring that enterprise agreements are compliant with the Fair Work Act and do not predetermine the outcome of future bargaining disputes. At the same time, the decision recognises the need for agreements that address significant industry issues, such as skills shortages, and provide fair and reasonable outcomes for employees. The Commission's approval of the agreement, subject to modifications, demonstrates its willingness to balance the competing interests of employers and employees in the enterprise bargaining process.

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