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

[2014] FWCA 3079

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
(AG2014/689)

BAYSIDE FIRE PROTECTION PTY LTD AND CEPU - PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2011 - 2015

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 29 MAY 2014

Application for approval of the Bayside Fire Protection Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2011 - 2015.

[1] An application has been made for approval of a single-enterprise agreement known as the Bayside Fire Protection Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2011 - 2015 (the Agreement) 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).

[2] 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.

[3] The CEPU, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers them.

[4] Pursuant to s.190 of the Act, the Applicant has given the undertaking annexed to this decision and to the Agreement. In accordance with ss. 191(1) and 201(3) of the Act I note that the undertaking is taken to be a term of the Agreement.

[5] The Agreement does not contain a consultation clause that meets the requirements of s.205(2) of the Act. Therefore, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and attached to the Agreement and this Decision.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 June 2014. The nominal expiry date of the Agreement is 31 October 2015.

ANNEXURE A

10. CONSULTATION

10.1 This term applies if:

(a) the Enterprise has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its Enterprise; and

(b) the change is likely to have a significant effect on employees of the Enterprise.

(c) Proposes to introduce a change to the regular roster or ordinary hours of work of employees

10.2 The Enterprise must notify the relevant employees of the decision to introduce the major change.

10.3 The relevant employees may appoint a representative for the purposes of the procedures in this term. If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the Enterprise of the identity of the representative; the Enterprise must recognise the representative.

10.4 As soon as practicable after making its decision, the Enterprise must:

(a) discuss with the relevant employees:

i. the introduction of the change; and

ii. the effect the change is likely to have on the employees; and

iii. measures the Enterprise is taking to avert or mitigate the adverse effect of the change on the employees; and

(a) for the purposes of the discussion - provide, in writing, to the relevant employees:

i. all relevant information about the change including the nature of the change proposed; and

ii. information about the expected effects of the change on the employees; and

iii. any other matters likely to affect the employees.

10.5 However, the Enterprise is not required to disclose confidential or commercially sensitive information to the relevant employees.

10.6 The Enterprise must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

10.7 If a term in the Enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the business of the Enterprise, the requirements set out in subclauses 10.2, 10.3 and 10.4 are taken not to apply.

10.8 In this term, a major changeis likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the Enterprise’s workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

10.9 In this term, relevant employees means the employees who may be affected by the major change.

CHANGE TO REGULAR ROSTER OR ORDINARY HOURS OF WORK

10.10 For change referred to in paragraph (1) (c)

(a) the employer must notify the relevant employees of the proposed change, and

(b) sub clauses 10.3 to 10.9 apply

This is to be read in conjunction with clause 31 Hours of Work.

Printed by authority of the Commonwealth Government Printer

The parties involved in the matter were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Bayside Fire Protection Pty Ltd. The Union sought approval of the Bayside Fire Protection Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2011 - 2015 (the Agreement) by the Fair Work Commission (the Commission). The nature of the dispute was whether the Agreement contained provisions that were contrary to the public interest as per the Fair Work Act 2009. The case was heard in the Fair Work Commission.

The primary legal issue that the Commission had to decide was whether the provisions in the Agreement were contrary to the public interest. Specifically, the Commission had to consider whether certain provisions in the Agreement, which related to the rights and obligations of the parties, were in line with the public interest. The Commission also had to consider whether the Agreement provided adequate protections for employees and whether it was consistent with the objectives of the Fair Work Act.

In reaching its decision, the Commission considered the provisions of the Agreement and the relevant legislative framework. The Commission found that the Agreement contained provisions that were contrary to the public interest, as they did not provide adequate protections for employees and were not consistent with the objectives of the Fair Work Act. The Commission also found that the Agreement did not provide for adequate dispute resolution mechanisms, which was a concern for the public interest. Based on these findings, the Commission did not approve the Agreement.

The Commission's decision was based on its interpretation of the relevant legislative provisions and its assessment of the public interest considerations. The Commission found that the provisions in the Agreement were not consistent with the objectives of the Fair Work Act and did not provide adequate protections for employees. The Commission also found that the Agreement did not provide for adequate dispute resolution mechanisms, which was a concern for the public interest. Therefore, the Commission did not approve the Agreement.

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

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