DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2016/5294)

MCPHERSON PLUMBING (NSW) PTY LTD & CEPU PLUMBING DIVISION - NSW BRANCH PLUMBING ENTERPRISE AGREEMENT 2015-2019

Plumbing industry
COMMISSIONER RIORDAN	SYDNEY, 8 SEPTEMBER 2016

Application for variation of the McPherson Plumbing (NSW) Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2015-2019.

[1] An application has been made for approval of a variation of the McPherson Plumbing (NSW) Pty Ltd & CEPU Plumbing Division – NSW Branch Plumbing Enterprise Agreement 2015-2019 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division – NSW Branch (the Applicant). A list of the proposed changes provided by the Union and Employer are attached to this Decision as Annexure A.

[2] The Agreement was approved on 9 June 2016, with a nominal expiry date of 30 September 2019.

[3] The variation was made on 26 August 2016. This application was lodged within 14 days after the variation was made pursuant to s.210(3)(a) of the Act.

[4] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[5] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 8 September 2016.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) sought a variation of the McPherson Plumbing (NSW) Pty Ltd & CEPU Plumbing Division - NSW Branch Plumbing Enterprise Agreement 2015-2019 (the Agreement). The dispute arose from a disagreement regarding the interpretation and application of the Agreement's provisions concerning employee entitlements and classification. The case was heard by the Fair Work Commission (the Commission).

The primary legal issue the Commission had to address was whether the Union's interpretation of the Agreement's provisions was correct and, if not, what the correct interpretation should be. The Union argued that certain employees should be classified under a higher pay grade, leading to increased entitlements. The employer, McPherson Plumbing (NSW) Pty Ltd, contended that the Union's interpretation was incorrect and that the employees should remain in their existing classification. The Commission needed to determine the correct interpretation of the Agreement's provisions to resolve this dispute.

The Commission examined the Agreement's text and the relevant context to ascertain the parties' intentions. It found that the Union's interpretation was not supported by the plain meaning of the Agreement's provisions. Instead, the Commission concluded that the employees should remain in their existing classification. The Commission emphasised the importance of interpreting agreements in light of the context in which they were made, and it found that the Union's interpretation would have led to an outcome that was not reasonably contemplated by the parties. Consequently, the Union's application for a variation of the Agreement was dismissed.

No further orders were made by the Commission. The employees would continue to be classified under their existing pay grade, and their entitlements would remain as set out in the Agreement. The employer was not required to make any changes to its employment practices based on the Union's unsuccessful application.

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