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

[2013] FWCA 7073

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
(AG2013/2831)

TANK INDUSTRIES AND CEPU - PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011-2015

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 17 SEPTEMBER 2013

Application for approval of the Tank Industries 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 Tank Industries 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 24 September 2013. 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 involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Tank Industries. The union sought approval of the Tank Industries and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015 under section 234 of the Fair Work Act 2009. The application was heard in the Federal Circuit Court. The union argued that the agreement contained fair and reasonable terms and conditions, and that the Fair Work Commission (FWC) had failed to approve it due to procedural errors.

The primary issue before the court was whether the FWC had correctly exercised its discretion in rejecting the agreement due to procedural shortcomings, or whether the court should exercise its discretion in approving the agreement. A secondary issue was whether the agreement contained terms that were fair and reasonable. The court considered the nature of the procedural errors, the impact of those errors on the fairness and reasonableness of the agreement, and whether the agreement contained provisions that were fair and reasonable.

The court found that the FWC had indeed erred in rejecting the agreement due to procedural issues. These procedural errors did not affect the fairness and reasonableness of the agreement. The court concluded that the agreement contained terms that were fair and reasonable and exercised its discretion to approve the agreement. The court emphasised that the procedural errors did not impact the merits of the agreement, which was found to be fair and reasonable on its own terms.

The court approved the Tank Industries and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015, and the union's application was successful. The court's decision underscores the importance of procedural correctness in the context of enterprise agreements, while also affirming that the substantive fairness and reasonableness of an agreement can be assessed independently of procedural flaws.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established