DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2020/2576)

KBR COMMERCIAL PTY LTD AND THE CEPU - PLUMBING DIVISION VICTORIAN BRANCH COMMERCIAL REFRIGERATION & SERVICE ENTERPRISE AGREEMENT 2019-2022

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 SEPTEMBER 2020

Application for approval of the KBR Commercial Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration & Service Enterprise Agreement 2019-2022

[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 KBR Commercial Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration & Service Enterprise Agreement 2019-2022 (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 employees were not provided with a copy of the notice of employee representational rights (NERR) 21 days before the vote. In all the circumstances, including that the vote occurred 20 days after the last NERR was given, 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 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] On the basis of the material contained in the application and accompanying statutory 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 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 statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 17 September 2020 and, in accordance with s 54, will operate from 24 September 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application for approval of an enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and KBR Commercial Pty Ltd. The agreement, known as the KBR Commercial Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration & Service Enterprise Agreement 2019-2022, was put forward for consideration and approval by the Commission. The application was made by the union, representing the employees, and KBR Commercial Pty Ltd, the employer.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of its coverage, the process through which it was negotiated, and the fairness of its terms and conditions. The Commission needed to determine if the agreement met the "better off overall test" and if it was free from any unlawful content or procedural irregularities.

In its decision, the Commission found that the proposed enterprise agreement was compliant with the legislative requirements. It noted that the agreement had been negotiated in good faith and was made without any duress, coercion, or unfair labour practices. The Commission also assessed the terms of the agreement and concluded that they were fair and reasonable, meeting the better off overall test. As a result, the Commission approved the KBR Commercial Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration & Service Enterprise Agreement 2019-2022, effective from the date of the decision.

The Fair Work Commission approved the KBR Commercial Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration & Service Enterprise Agreement 2019-2022, confirming its compliance with the Fair Work Act 2009. The agreement is now in force and binding on the parties involved, providing a framework for the terms and conditions of employment for the relevant employees.

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