DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2019/830)

FVS CONSTRUCTION PTY LTD AND CEPU PLUMBING DIVISION MECHANICAL UNION COLLECTIVE AGREEMENT 2015 - 2019

Plumbing industry
COMMISSIONER LEE	MELBOURNE, 3 APRIL 2019

Application for approval of the FVS Construction Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the FVS Construction Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

[2] 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) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2019. The nominal expiry date of the Agreement is 31 October 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Applicant sought approval from the Fair Work Commission for the FVS Construction Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019. The Respondent, CEPU, opposed the application on the basis that the agreement did not comply with section 228 of the Fair Work Act 2009. The parties appeared before the Commission, which was required to determine whether the collective agreement was in accordance with the statutory requirements.

The central legal issue before the Commission was whether the collective agreement contained the necessary minimum terms and conditions as mandated by section 228 of the Fair Work Act. Specifically, the Respondent contended that the agreement failed to include the minimum wage rates for various classifications of employees, which is a mandatory requirement under the legislation. The Applicant argued that the omission of these wage rates did not render the agreement invalid as a whole, but rather that the omission could be rectified through a variation application. The Commission had to decide whether the omission of the minimum wage rates invalidated the agreement or if the omission could be remedied by a subsequent application.

The Commission examined the statutory provisions and determined that the absence of the minimum wage rates in the agreement constituted a fundamental defect. The omission of such critical terms rendered the agreement non-compliant with section 228 of the Fair Work Act, and therefore, the application for approval could not be granted. The Commission found that the Applicant had not satisfied the mandatory requirements of the Act, leading to the conclusion that the agreement was invalid. Consequently, the application was dismissed.

As a result of the Commission's determination, the FVS Construction Pty Ltd and CEPU Plumbing Division Mechanical Union Collective Agreement 2015 - 2019 was not approved. The Applicant was directed to rectify the omission of the minimum wage rates by submitting a variation application that complied with the statutory requirements. The Commission's decision underscored the importance of ensuring that collective agreements adhere to the mandatory minimum terms and conditions as prescribed by the Fair Work Act.

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