DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2018/3548)

ACTIVATE FIRE PROTECTION PTY LTD & CEPU NSW/NFIA SPRINKLER FITTING FIRE PROTECTION UNION ENTERPRISE AGREEMENT NSW & ACT 2015 - 2019

Plumbing industry
COMMISSIONER LEE	MELBOURNE, 28 AUGUST 2018

Application for approval of the Activate Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015 – 2019.

[1] An application has been made for approval of an enterprise agreement known as the Activate Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015 - 2019. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the 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 4 September 2018. The nominal expiry date of the Agreement is 30 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union), applied to the Fair Work Commission (the Commission) for the approval of the Activate Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015 – 2019 (the Agreement). The employer, Activate Fire Protection Pty Ltd, did not oppose the application for approval. The legal issue before the Commission was whether the Agreement satisfied the requirements of section 231 of the Fair Work Act 2009, in particular whether the Agreement included minimum rates of pay that were not less favourable than the applicable award or safety net award, and whether it contained a valid variation clause. The Commission found that the Agreement did not meet the requirements of section 231 of the Fair Work Act 2009 because it did not include minimum rates of pay that were not less favourable than the applicable award or safety net award. The Commission also found that the Agreement contained a clause that was contrary to the provisions of section 235 of the Fair Work Act 2009, which prohibits variations that have the effect of reducing the rate of pay of an employee. As a result, the Commission did not approve the Agreement. The Commission noted that the parties had an opportunity to make submissions on the issue of whether the Agreement should be approved despite the deficiencies identified, but they did not do so. The Commission considered that the deficiencies in the Agreement were significant and could not be overlooked. The Commission refused to approve the Agreement.

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