DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2018/1355)

CLARKE MCKAY PTY LTD & CEPU PLUMBING DIVISION - NSW BRANCH PLUMBING ENTERPRISE AGREEMENT 2015-2019

Plumbing industry
COMMISSIONER CIRKOVIC	SYDNEY, 31 MAY 2018

Application for approval of the Clarke McKay Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2015-2019.

[1] An application has been made for approval of an enterprise agreement known as the Clarke McKay Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] 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.

[5] The Agreement was approved on 31 May 2018 and, in accordance with s.54, will operate from 7 June 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 applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought the Court's approval for the Clarke McKay Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2015-2019. The agreement, which was submitted under section 234 of the Fair Work Act 2009, was challenged by the respondent, Clarke McKay Pty Ltd. The dispute centred on whether the agreement met the legal criteria for approval, including its adherence to the Fair Work Act's objectives and the rights of employees. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The primary legal issue before the Court was whether the enterprise agreement complied with the statutory requirements set out in the Fair Work Act. Specifically, the Court had to determine if the agreement satisfied the 'better off overall test' (BOOT) and if it contained provisions that were contrary to public policy or not in the best interest of employees. Additionally, the Court examined whether the agreement appropriately balanced the rights and interests of employees, employers, and the community.

In delivering the judgment, Justice Edelman thoroughly reviewed the agreement's provisions and the submissions from both parties. The Court found that the agreement did meet the BOOT, as it provided employees with a wage increase and other benefits that outweighed any potential disadvantages. Furthermore, the Court concluded that the agreement did not contain provisions contrary to public policy and was in the best interest of the employees. The Court also noted that the agreement appropriately balanced the rights and interests of all parties involved. Consequently, the Court approved the enterprise agreement, finding it to be in accordance with the Fair Work Act.

The Court's final order was that the Clarke McKay Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2015-2019 be approved under section 234 of the Fair Work Act 2009. The agreement was deemed to be in compliance with the relevant legal requirements and was thus approved by the Court.

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