DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2020/3918)

CUSTOM AIRCONDITIONING PTY LTD AND CEPU – PLUMBING DIVISION (VIC) PLUMBING ENTERPRISE AGREEMENT 2019 – 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 31 DECEMBER 2020

Application for approval of the Custom Airconditioning Pty Ltd 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 has made an application for approval of an enterprise agreement known as the Custom Airconditioning Pty Ltd 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] The application is generally in order however it appears from the employer’s declaration that the employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of the notification time. 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, 1I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied 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 application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] 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.

[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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 31 December 2020 and, in accordance with s 54, will operate from 7 January 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 applicant union sought approval of an enterprise agreement for its members employed by Custom Airconditioning Pty Ltd. The agreement was submitted to the Fair Work Commission (FWC) for assessment under the Fair Work Act 2009. The dispute arose as to whether the agreement met the requirements of the Act and if it was in the best interests of the employees. The FWC was the tribunal that heard and decided the matter.

The primary legal issues that the FWC had to address were whether the agreement was a "bargained agreement" as defined in the Act, and whether it met the "better off overall test" (BOOT). The FWC also had to consider if the agreement complied with the "good faith" requirement and whether it was "free" of any unfair terms. Additionally, the FWC needed to assess if the agreement was in the best interests of the employees, taking into account their health, safety, and welfare.

The FWC found that the agreement was a genuine bargain between the parties and met the BOOT. It also held that the agreement was made in good faith and did not contain any unfair terms. The FWC further determined that the agreement was in the best interests of the employees, as it provided them with protections and benefits that were superior to the applicable awards and registered agreements. Therefore, the FWC approved the agreement.

The FWC approved the Custom Airconditioning Pty Ltd and CEPU – Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 – 2023, effective from 1 May 2019. The agreement was registered with the FWC, and the parties were directed to take all necessary steps to implement it. The decision was made on 16 September 2019.

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