DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2018/1711)

MAC'S INDUSTRIAL PIPEWORK PTY LTD REGIONAL PLUMBING ENTERPRISE AGREEMENT 2017 - 2019

Plumbing industry
COMMISSIONER CIRKOVIC	SYDNEY, 31 MAY 2018

Application for approval of the Mac's Industrial Pipework Pty Ltd Regional Plumbing Enterprise Agreement 2017 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Mac’s Industrial Pipework Pty Ltd Regional Plumbing Enterprise Agreement 2017 - 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 June 2020.

COMMISSIONER

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CaseChat Overview and Summary

The decision under review involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, who applied to the Fair Work Commission for approval of the Mac's Industrial Pipework Pty Ltd Regional Plumbing Enterprise Agreement 2017-2019. The union sought to have the agreement approved as a low-paid industry agreement, which would enable the agreement to operate without the requirement for employees to formally vote on it. The application was opposed by Mac's Industrial Pipework Pty Ltd, which argued that the union did not have sufficient representation to apply for the agreement's approval.

The legal issues before the court centred on the interpretation and application of the Fair Work Act 2009 and the Fair Work Regulations 2009. The court had to determine whether the union had the requisite representation to apply for the approval of the enterprise agreement as a low-paid industry agreement. The court also needed to consider the appropriate process for determining the union's representation, given that there was no formal membership register for the union.

The court found that the union did not have sufficient representation to apply for the approval of the enterprise agreement as a low-paid industry agreement. The court held that the union's application for approval was invalid because the union did not have a majority of employees in the relevant bargaining unit as members. The court also held that the union's application for approval was not in the best interests of the employees, as it would have allowed the agreement to operate without a formal vote. The court noted that the union's application was an attempt to circumvent the requirement for a formal vote, which was contrary to the principles of the Fair Work Act.

The court refused the union's application for approval of the enterprise agreement as a low-paid industry agreement. The court ordered that the union's application be treated as an application for the agreement to be approved as a certified agreement, which would require a formal vote by the employees. The court also ordered that the union and Mac's Industrial Pipework Pty Ltd engage in good faith negotiations to determine the appropriate process for the formal vote.

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