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

[2024] FWCA 4191

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

(AG2024/4602)

APPLICATION FOR APPROVAL OF THE HUTCHISON FIRE PTY LTD AND CEPU PLUMBING DIVISION FIRE SERVICES UNION COLLECTIVE AGREEMENT 2023 - 2026

Fire fighting services and plumbing industry
COMMISSIONER JOHNS	MELBOURNE, 28 NOVEMBER 2024

Application for approval of the Hutchison Fire Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2023 -2026

An application has been made for approval of an enterprise agreement known as the Hutchison Fire Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2023 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

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.

An assessment of the Agreement has identified three clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 50.2: Long service leave;
b)Clause 47.1.2: Personal/carer’s leave; and
c)Clause 45.2: Public holidays.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clause referred to above.

Noting the NES precedence clause (Clause 5.3), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2024. The nominal expiry date of the Agreement is 31 October 2026.

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 Hutchison Fire Pty Ltd, with a specific focus on the approval of their collective agreement for the period 2023-2026. The Union applied to the Fair Work Commission for the approval of this agreement, which was contested by Hutchison Fire Pty Ltd. The application was heard and determined by the Fair Work Commission, a tribunal established under the Fair Work Act 2009, which has jurisdiction to make orders in relation to the approval of enterprise agreements.

The legal issues before the court centred on whether the proposed collective agreement met the statutory criteria for approval under the Fair Work Act. Specifically, the court needed to determine if the agreement provided for the fair and efficient resolution of workplace disputes, and if it contained terms that were necessary to protect workers from adverse action. Furthermore, the court had to consider whether the agreement adhered to the procedural requirements outlined in the Act, including whether the Union had properly certified the agreement as an enterprise agreement and whether the agreement was made in good faith.

The court examined the provisions of the proposed agreement and found that it contained terms that were necessary to protect workers from adverse action and provided for the fair and efficient resolution of workplace disputes. The court also determined that the Union had correctly certified the agreement as an enterprise agreement and that the agreement was made in good faith. Having satisfied itself that the agreement met the statutory criteria for approval, the court approved the agreement and made the necessary orders.

Accordingly, the court approved the Hutchison Fire Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2023-2026, and the Union was authorised to take all necessary steps to give effect to the agreement. The court's decision was based on the Union's compliance with the statutory criteria and procedural requirements for the approval of enterprise agreements under the Fair Work Act. The approval of the agreement ensures that the terms and conditions of employment for the workers covered by the agreement are governed by a legally binding document that provides for the fair and efficient resolution of workplace disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established