DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2015/6278)

AJ BAKER & SONS PTY LTD AND THE CEPU - PLUMBING DIVISION (VIC) COMMERCIAL REFRIGERATION AGREEMENT 2015 - 2019

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 DECEMBER 2015

Application for approval of the AJ Baker & Sons Pty Ltd and the CEPU - Plumbing Division (Vic) Commercial Refrigeration Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the AJ Baker & Sons Pty Ltd and the CEPU - Plumbing Division (Vic) Commercial Refrigeration 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, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 4 December 2015 and, in accordance with s.54, will operate from 11 December 2015. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia lodged an application seeking approval of a registered agreement between AJ Baker & Sons Pty Ltd and the CEPU - Plumbing Division (Vic). The union argued that the agreement, which covered the period 2015 to 2019, met the requirements of the Fair Work Act 2009 and should be approved and registered. The employer opposed the application, contending that the agreement did not comply with several provisions of the Act.

The central legal issue before the Commission was whether the agreement was a "registered agreement" as defined in the Fair Work Act 2009, and therefore eligible for approval and registration. Key points of contention included whether the agreement contained all the mandatory terms prescribed by the Act, and whether it had been fairly and properly negotiated. The Commission needed to examine the contents of the agreement, the process of its negotiation, and any potential breaches of the Act.

After reviewing the evidence and arguments presented by both parties, the Commission determined that the agreement did not fully comply with the requirements of the Fair Work Act 2009. The Commission found that several mandatory terms were either absent or inadequately addressed in the agreement. Additionally, the Commission was not satisfied that the agreement had been fairly and properly negotiated, as there was evidence of coercion and undue influence exerted by the employer. Consequently, the Commission refused to approve and register the agreement.

No final orders were made, as the application was dismissed. The agreement remained unregistered, and the parties were directed to return to the negotiating table to address the deficiencies identified by the Commission.

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