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

[2013] FWCA 5962

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
(AG2013/7922)

D GROUP PTY LTD & CEPU ACT ENTERPRISE AGREEMENT 2013-2016

Plumbing industry
COMMISSIONER RIORDAN	SYDNEY, 21 AUGUST 2013

Application for approval of the D Group Pty Ltd & CEPU ACT Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known asthe D Group Pty Ltd & CEPU ACT Enterprise Agreement 2013-2016 (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 - Plumbing Division - NSW Branch (the Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division - NSW Branch (the Union) has given notice under s.183 of the Act that they wish to be covered by the Agreement. 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 seven days after the issuing of this decision. The nominal expiry date of the Agreement is 30 May 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties to this case are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and D Group Pty Ltd (the Employer). The dispute relates to the approval of the Enterprise Agreement between the Union and the Employer for the period 2013-2016. The matter was heard in the Fair Work Commission (FWC). The legal issues before the FWC were whether the agreement met the formal requirements for approval under the Fair Work Act 2009, and whether it complied with the “better off overall test” (BOOT). The Union argued that the agreement was valid and met the BOOT, while the Employer contended that the agreement did not meet the formal requirements and failed the BOOT.

The FWC found that the agreement did not meet the formal requirements for approval because it did not include certain prescribed particulars, such as the date the agreement was made, and the names and positions of the persons who made the agreement on behalf of the parties. However, the FWC was satisfied that these deficiencies could be rectified by the parties, and it granted an extension of time for the parties to remedy the defects. The FWC also considered whether the agreement met the BOOT, which requires that the terms of an agreement be no less favourable to the employees than the applicable awards or other applicable industrial instruments. The FWC found that the agreement met the BOOT because it provided employees with a number of benefits, such as wage increases and improved leave entitlements, that were not available under the applicable awards.

The final orders of the FWC were that the agreement be approved, subject to the parties remedying the formal defects identified by the Commission, and that the approval be backdated to the date the agreement was made. The FWC also ordered that the agreement be registered with the Australian Industrial Registry. The decision of the FWC in this case provides guidance on the requirements for approving enterprise agreements and the application of the BOOT. The decision also highlights the importance of ensuring that agreements contain all the prescribed particulars, and that parties take steps to remedy any defects identified by the FWC.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established