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

[2014] FWCA 1426

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
(AG2014/360)

DMK ROOFING PTY LTD AND CEPU-PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011-2015

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 27 FEBRUARY 2014

Application for approval of the DMK Roofing Pty Ltd and CEPU-Plumbing Division (Vic) Enterprise Agreement 2011-2015.

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

[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 the organisation.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for approval of the DMK Roofing Pty Ltd and CEPU-Plumbing Division (Vic) Enterprise Agreement 2011-2015 (the Agreement). The Applicant sought the Commission's approval of the Agreement under section 235 of the Fair Work Act 2009, on the basis that it met the "better off overall test" in section 230 of the Act.

The central legal issue before the Commission was whether the Agreement satisfied the "better off overall test". This test requires that, overall, the terms of an enterprise agreement must provide employees with a direct financial advantage, or a non-financial advantage that is at least equivalent to a direct financial advantage, compared to the relevant award. The Applicant argued that the Agreement met this test and provided employees with a direct financial advantage in the form of wage increases and other benefits. The respondent, DMK Roofing Pty Ltd, contended that the Agreement did not meet the test and failed to provide employees with a direct financial advantage.

The Commission found that the Agreement did not meet the "better off overall test" as it failed to provide employees with a direct financial advantage. The Agreement contained wage increases, but these were offset by changes to penalty rates, resulting in no overall increase in take-home pay for employees. The Commission noted that the Agreement did provide some non-financial benefits, but these were not equivalent to a direct financial advantage. Consequently, the Commission refused to approve the Agreement.

The Fair Work Commission refused the Applicant's application for approval of the DMK Roofing Pty Ltd and CEPU-Plumbing Division (Vic) Enterprise Agreement 2011-2015. The Commission held that the Agreement did not meet the "better off overall test" as it did not provide employees with a direct financial advantage. The Commission found that the wage increases in the Agreement were offset by changes to penalty rates, resulting in no overall increase in take-home pay for employees. The non-financial benefits in the Agreement were also not equivalent to a direct financial advantage. The Commission's decision was based on the specific terms of the Agreement and the evidence presented by both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established