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

[2025] FWCA 1211

[2025] FWCA 1211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

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

(AG2025/882)

OOMIAK PROJECTS PTY LTD AND THE CEPU - PLUMBING DIVISION VICTORIAN BRANCH COMMERCIAL REFRIGERATION ENTERPRISE AGREEMENT 2024

Plumbing industry
COMMISSIONER REDFORD	MELBOURNE, 14 APRIL 2025

Application for approval of the Oomiak Projects Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as Oomiak Projects Pty Ltd and the CEPU - Plumbing Division Victorian Branch Commercial Refrigeration Enterprise Agreement 2024 (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 (CEPU) and concerns Oomiak Projects Pty Ltd (Oomiak Projects). The Agreement is a single enterprise agreement.

Workplace Delegates Rights

1. Section 205A of the Act relevantly provides:

205A  Enterprise agreements to include a delegates’ rights term etc.

(1) An enterprise agreement must include a delegates’ rights term for workplace delegates to whom the agreement applies.

Note: Delegates’ rights term is defined in section 12.

When modern award term prevails

(2) However, if, when the agreement is approved, the delegates’ rights term is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates:

(a) the term in the enterprise agreement has no effect; and

(b) the most favourable term of those in the modern awards, as determined by the FWC, is taken to be a term of the enterprise agreement.

1. Section 12 of the Act provides that a “delegates’ rights term” means a term in a fair work instrument that provides for the exercise of the rights of workplace delegates.

1. Clause 17 of the agreement is entitled “Employee Representatives” and is a delegates rights clause because it provides generally for the exercise of the rights of workplace delegates. This clause is less beneficial than clause 29A of the Plumbing and Fire Sprinklers Award 2020 (the Award) including in relation to:

• Clause 29A.6 – entitlement to reasonable communication; and 

• Clause 29A.7 – entitlement to reasonable access to the workplace and workplace facilities; and 

1. Section 205A(2) of the Act provides that where a delegates’ rights term is less favourable in an agreement compared to the modern award, the agreement term will have no effect and the most favourable modern award term shall be taken to be a term of the enterprise agreement. I consider that the delegates right term in the Agreement is less favourable than the term in in the Award and pursuant to s.205A(2) of the Act, the delegates’ rights term in clause 29A of the Award is taken to be a term of the Agreement and clause 17 of the Agreement has no effect.

1. For the avoidance of any doubt, I do not consider that the effective replacement of clause 17 of the Agreement with clause 29A of the Award disturbs in any way the operation of clause 18 of the Agreement, which deals separately with Employee Representative Training Leave.

1. For completeness I note this matter was raised with the bargaining representatives, none of whom objected to this determination.

Interaction with the National Employment Standards

1. Clause 6.2 of the Agreement provides that the National Employment Standards (NES) applies to the extent that any aspect of the Agreement would otherwise be detrimental to an employee, compared with the NES (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Personal/carer’s leave – notification: clause 10.3.1 of the Agreement provides that ‘The employee will before their normal start time, or if this is not practicable, as soon as possible, inform the employer of their inability to attend for duty and as far as practicable, state the nature of the injury or illness and the estimated duration of absence.’ The Agreement clause appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started). I note that, the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply in any event.

Consideration

1. 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.

1. The CEPU 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 CEPU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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