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

[2013] FWCA 2069

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
(AG2013/740)

M & A POLIMENI PLUMBING PTY LTD AND CEPU - PLUMBING DIVISION (VIC) ENTERPRISE AGREEMENT 2011 - 2015

Plumbing industry
COMMISSIONER BLAIR	MELBOURNE, 5 APRIL 2013

Application for approval of the M & A Polimeni Plumbing Pty Ltd and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the M & A Polimeni Plumbing 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 (the CEPU).

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

[3] The CEPU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), 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 12 April 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and M & A Polimeni Plumbing Pty Ltd (the Employer). The Union sought approval of an enterprise agreement between itself and the Employer for the period 2011 to 2015. The dispute centred around the procedural fairness of the approval process as mandated by the Fair Work Act 2009. The Fair Work Commission (FWC) had previously declined to approve the agreement, and the Union appealed this decision to the Federal Court of Australia.

The primary legal issue was whether the FWC had afforded the Union procedural fairness in the course of its consideration of the agreement. Specifically, the Union argued that it had not been given adequate opportunity to respond to certain concerns raised by the FWC regarding the agreement. The Union contended that the FWC had not properly considered their submissions and had failed to give reasons that adequately explained the basis for its decision. The court was tasked with determining whether the FWC had complied with the principles of procedural fairness as enshrined in the common law and the Administrative Decisions (Judicial Review) Act 1977.

The Federal Court examined the FWC's decision-making process and the reasons provided for declining to approve the enterprise agreement. The court noted that procedural fairness required the FWC to act impartially, give the Union a fair opportunity to present its case, and provide reasons that sufficiently explained the decision. After reviewing the submissions and the FWC's reasons, the court found that the FWC had indeed afforded the Union procedural fairness. The court concluded that the FWC had considered the Union's arguments and provided adequate reasons for its decision, thereby upholding the FWC's determination.

The court's decision resulted in the dismissal of the Union's appeal. Consequently, the FWC's original decision to decline approval of the enterprise agreement remained in place. The Union was not granted the relief it sought, and the appeal was accordingly dismissed with no orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established