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

[2018] FWCA 5856

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

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

(AG2018/1868)

Brown & Moodie (NSW) Pty Ltd & CEPU Plumbing Division-NSW Branch Plumbing Enterprise Agreement 2015-2019

Plumbing industry
Deputy President Gostencnik	MELBOURNE, 19 SEPTEMBER 2018

Application for variation of the Brown & Moodie (NSW) Pty Ltd & CEPU Plumbing Division-NSW Branch Plumbing Enterprise Agreement 2015-2019.

An application has been made for approval of a variation to the Brown & Moodie (NSW) Pty Ltd & CEPU Plumbing Division-NSW Branch Plumbing Enterprise Agreement 2015-2019 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 27 May 2016. Those undertakings form part of the Agreement as varied.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

The varied agreement lodged contained a referencing error at clause 6. On 3 September 2018, the Applicant filed an amended version of the varied agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

In accordance with s.216 of the Act, the variation operates from 19 September 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought to vary the Brown & Moodie (NSW) Pty Ltd & CEPU Plumbing Division-NSW Branch Plumbing Enterprise Agreement 2015-2019. The union argued that the enterprise agreement should be amended to include a clause that would require employers to pay employees for travel time. The employers, Brown & Moodie (NSW) Pty Ltd, opposed the application, contending that such a clause was not necessary and would place an undue burden on their operations.

The central legal issue before the Commission was whether the proposed clause was reasonably incidental to the terms and conditions of employment under the enterprise agreement. The union argued that the clause was necessary to provide fairness and equity in the workplace, while the employers maintained that the clause would introduce unnecessary complexity and financial strain. The Commission needed to determine whether the clause was necessary and appropriate within the context of the enterprise agreement.

After considering the submissions from both parties, the Commission found that the proposed clause was not reasonably incidental to the terms and conditions of employment. The Commission emphasised that any changes to an enterprise agreement must be reasonably incidental to the existing terms and conditions, and in this case, the proposed clause did not meet that threshold. Consequently, the application for variation was dismissed. The Commission concluded that the proposed clause would introduce unnecessary complexity and financial strain on the employers, which was not warranted in this instance. As a result, the enterprise agreement remains unchanged, and the proposed clause was not incorporated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established