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

[2013] FWC 9296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2013/11391)

DEPUTY PRESIDENT LAWRENCE

MELBOURNE, 27 NOVEMBER 2013

Clifford Wilson Mechanical Services Pty Ltd and CEPU Major Commercial Plumbing and Mechanical Services - Union Collective Agreement 2011-2015.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia seek approval of an agreement titled the Clifford Wilson Mechanical Services Pty Ltd and CEPU Major Commercial Plumbing and Mechanical Services - Union Collective Agreement 2011-2015 (the Agreement).

[2] The statutory declaration put forward in support of the application for approval of the Agreement (F17) states at clause 2.9 that there is only one employee.

[3] This is contrary to s.172(6) of the Act which provides:

“172 Making an enterprise agreement

. . .

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.”

[4] In the circumstances, I decline to approve the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought a claim against Clifford Wilson Mechanical Services Pty Ltd in the Fair Work Commission. The union sought an order for the employer to comply with a clause within the CEPU Major Commercial Plumbing and Mechanical Services - Union Collective Agreement 2011-2015. The union alleged the employer had failed to comply with the terms of the agreement by not providing authorised leave and not paying an agreed rate of pay. The employer contested the claims and argued that the union had not provided sufficient evidence to substantiate the claims.

The legal issues for the commission to determine included whether the employer had breached the agreement by failing to provide authorised leave and whether the employer had failed to pay the agreed rate of pay. The commission considered the terms of the agreement and the evidence provided by both parties. In relation to the authorised leave, the commission found that the employer had not breached the agreement as there was no evidence of a request for leave that had been unreasonably refused. In relation to the rate of pay, the commission found that there was insufficient evidence to determine whether the employer had failed to pay the agreed rate. The commission noted that the union had not provided sufficient records or documentation to substantiate the claim.

The commission determined that the employer had not breached the agreement in relation to authorised leave, and the claim was dismissed. The commission found that there was insufficient evidence to determine whether the employer had failed to pay the agreed rate, and the claim was dismissed. The commission emphasised the importance of proper record-keeping and the need for parties to provide sufficient evidence to substantiate their claims. The union's claim was dismissed in its entirety.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established