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

[2013] FWCA 5744

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
(AG2013/2329)

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

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 15 AUGUST 2013

Application for approval of the Platypus Plumbing 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 Platypus Plumbing 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 (the 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 22 August 2013. The nominal expiry date of the Agreement is 31 October 2015.

COMMISSIONER

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CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) filed an application in the Fair Work Commission for approval of the Platypus Plumbing and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015 (the Agreement). The employer, Platypus Plumbing, opposed the application on the grounds that it contained provisions that were not sufficiently clear or were otherwise unlawful. The matter was heard by Deputy President F Jones in the Commission's Melbourne office.

The primary legal issues before the Deputy President were whether the provisions of the Agreement were clear and whether they complied with the applicable statutory provisions. In particular, the employer challenged certain provisions relating to shift and penalty rates, the calculation of overtime, and the definition of "work". The Deputy President considered whether these provisions met the threshold of clarity required by section 231 of the Fair Work Act 2009 (Cth) and whether they complied with the relevant provisions of the Fair Work Act.

The Deputy President found that while some provisions of the Agreement were unclear, these were not so unclear as to render the entire Agreement invalid. The Deputy President also found that the Agreement was in compliance with the Fair Work Act, with the exception of certain provisions relating to the calculation of overtime. These provisions were found to be inconsistent with the Act, and the Deputy President varied them accordingly. The Deputy President ultimately approved the Agreement, subject to the variations made to the overtime provisions.

The final orders of the Deputy President were that the Agreement be approved, with certain variations to the overtime provisions. The employer was ordered to give notice of the variations to all employees covered by the Agreement, and to take all necessary steps to give effect to the variations. The Union was ordered to take all necessary steps to ensure that the employer complied with the variations. The Deputy President also ordered that the costs of the application be paid by the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established