DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2017/3248)

D&E AIR CONDITIONING PTY LTD & CEPU PLUMBING DIVISION - NSW BRANCH PLUMBING ENTERPRISE AGREEMENT 2015-2019

Plumbing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 10 OCTOBER 2017

Application for approval of the D&E Air Conditioning 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 D&E Air Conditioning 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] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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.

[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 10 October 2017 and, in accordance with s.54, will operate from 17 October 2017. The nominal expiry date of the Agreement is 30 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants in this case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and its CEPU Plumbing Division - NSW Branch. They sought approval of an enterprise agreement with D&E Air Conditioning Pty Ltd. The application was made to the Fair Work Commission under the Fair Work Act 2009. The nature of the dispute centred around the terms and conditions of the proposed enterprise agreement, specifically whether it complied with the statutory requirements for fair and equitable workplace arrangements.

The legal issues that the Fair Work Commission had to decide included whether the agreement was genuinely negotiated between the parties, whether it met the requirements for "directness" in negotiations, and whether it provided for fair and reasonable terms and conditions for the employees. Additionally, the Commission needed to assess whether the agreement provided for the fair treatment of employees and whether it complied with the "better off overall test" (BOOT), ensuring that employees were not worse off financially under the new agreement.

In reaching its decision, the Commission found that the agreement had been genuinely negotiated between the parties and met the directness requirement. The Commission also found that the agreement provided for fair and reasonable terms and conditions for the employees and complied with the better off overall test. The Commission determined that the agreement was fair and equitable for the employees and did not disadvantage any group of employees. Consequently, the Fair Work Commission approved the application for the enterprise agreement to be registered.

The final orders made by the Fair Work Commission were that the D&E Air Conditioning Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2015-2019 be registered under section 232 of the Fair Work Act 2009. This registration would allow the agreement to have legal effect as a registered agreement, providing the basis for the terms and conditions of employment for the employees covered by 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