DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2020/576)

MB GROUP SOLUTIONS AND THE CEPU - PLUMBING DIVISION VICTORIAN BRANCH COMMERCIAL REFRIGERATION & SERVICE ENTERPRISE AGREEMENT 2019-2022

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 MARCH 2020

Application for approval of the MB Group Solutions 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 has made an application for approval of an enterprise agreement known as the MB Group Solutions 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] 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 have been met.

[3] 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 statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 18 March 2020 and, in accordance with s 54, will operate from 25 March 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the MB Group Solutions and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration & Service Enterprise Agreement 2019-2022. The union sought to have the agreement approved under the Fair Work Act 2009, with the employer opposing the application on various grounds, including the absence of genuine bargaining and certain provisions not meeting the ‘better off overall’ test. The central dispute was whether the agreement, as proposed, met the statutory requirements for approval under the Fair Work Act, specifically in relation to the bargaining process and the provisions of the agreement itself.

The legal issues for the commission to decide included whether there had been genuine bargaining between the parties, as required by section 230 of the Act, and whether the agreement met the ‘better off overall’ test as mandated by section 235 of the Act. The commission needed to assess whether the agreement provided for terms and conditions that were at least as favourable as the applicable awards or other agreements, and whether it was free from any discriminatory or unjust provisions. Additionally, the commission had to consider the implications of any non-compliance with the Act and the potential impact on the employees covered by the agreement.

In its decision, the commission found that the application did not meet the statutory requirements for approval. The commission determined that there had not been genuine bargaining between the parties, as evidenced by the employer’s failure to engage in meaningful discussions and the union’s unilateral presentation of the agreement. Furthermore, the commission found that certain provisions of the agreement did not satisfy the ‘better off overall’ test, as they did not provide for terms and conditions that were at least as favourable as the applicable awards or other agreements. Consequently, the commission refused to approve the agreement, finding it did not comply with the statutory provisions of the Fair Work Act.

The commission’s final orders included the refusal of the application for approval of the agreement. The commission directed that the agreement could not be registered and that it would not have effect. The commission also noted the importance of genuine bargaining and compliance with the Act in future negotiations between the parties. The decision underscored the need for both employers and unions to adhere to the legal requirements when entering into enterprise agreements.

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