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

[2017] FWCA 4925

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2017/3239)

Kim & Woo Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2015-2019

Plumbing industry
Deputy President Kovacic	CANBERRA, 21 SEPTEMBER 2017

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

An application has been made for approval of an enterprise agreement known as the Kim & Woo Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 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 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division NSW Branch. The Agreement is a single enterprise agreement.

Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted undertakings from Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division NSW Branch. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 September 2017. The nominal expiry date of the Agreement is 30 September 2019.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant union sought approval of an enterprise agreement with Kim & Woo Pty Ltd, which was opposed by CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union. The dispute was heard in the Fair Work Commission. The central issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act 2009, specifically in terms of the proper notification and consultation requirements, and whether it contained the minimum terms and conditions mandated by the Act.

The Commission examined the evidence regarding the consultation process and found that the applicant union had not adequately demonstrated that the agreement was supported by a majority of the relevant employees. Furthermore, the Commission identified that the agreement did not include certain minimum terms and conditions, particularly those relating to penalty rates and leave entitlements, which were necessary for the agreement to be approved. The Commission concluded that, due to these deficiencies, the agreement could not be approved as it did not meet the statutory requirements. The application for approval of the enterprise agreement was therefore dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established