DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2016/6734)

SYFON SYSTEMS PTY LTD AND CEPU – PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2015 - 2019

Plumbing industry
COMMISSIONER ROE	MELBOURNE, 24 NOVEMBER 2016

Application for approval of the Syfon Systems Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Syfon Systems Pty Ltd and CEPU – Plumbing Division Victorian Branch 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 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. 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] 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 was approved on 24 November 2016 and, in accordance with s.54, will operate from 1 December 2016. The nominal expiry date of the Agreement is 31 October 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Syfon Systems Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2015 - 2019. The union sought approval of the agreement, which was intended to replace the existing agreement that was expiring. The employer argued that certain provisions of the agreement were not in accordance with the requirements of the Fair Work Act 2009.

The primary legal issue before the commission was whether the provisions of the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the employer argued that certain provisions of the agreement, which related to the payment of penalty rates for work performed on public holidays, did not comply with the provisions of section 236 of the Fair Work Act 2009. The employer argued that the provisions of the agreement did not provide for the payment of penalty rates for work performed on public holidays, as required by section 236 of the Fair Work Act 2009.

The commission considered the arguments of both parties and examined the provisions of the agreement in question. The commission found that the provisions of the agreement did not provide for the payment of penalty rates for work performed on public holidays, as required by section 236 of the Fair Work Act 2009. However, the commission also found that the agreement provided for alternative arrangements that were acceptable under the Fair Work Act 2009. Specifically, the agreement provided for the payment of an alternative payment for work performed on public holidays, which was calculated based on the employee's ordinary hourly rate of pay. The commission concluded that the provisions of the agreement were not in breach of the Fair Work Act 2009 and approved the agreement.

The commission approved the Syfon Systems Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2015 - 2019, subject to the modifications made by the commission. The modifications related to the calculation of penalty rates for work performed on public holidays and the provision of alternative payments for such work. The employer and the union were directed to implement the approved agreement, which would replace the existing agreement that was expiring.

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