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

[2024] FWCA 2927

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

(AG2024/2905)

AIR CROSS DEVELOPMENTS PTY LTD & CEPU PLUMBING DIVISION - NSW BRANCH MECHANICAL (HVAC) ENTERPRISE AGREEMENT 2023-2027

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 9 AUGUST 2024

Application for approval of the Air Cross Developments Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical (HVAC) Enterprise Agreement 2023-2027

An application has been made for approval of an enterprise agreement known as the Air Cross Developments Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical (HVAC) Enterprise Agreement 2023-2027 (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 two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 45: Public holidays; and
b)Clause 17.2: Notice of termination.

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 clauses referred to above.

Noting the NES precedence clause (clause 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 16 August 2024. The nominal expiry date of the Agreement is 30 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, along with the CEPU Plumbing Division - NSW Branch Mechanical (HVAC) Enterprise Agreement 2023-2027, which was proposed for approval. The dispute arose from a submission by the Australian Building and Construction Commission (ABCC) which questioned the agreement's compliance with certain statutory provisions. The matter was heard in the Fair Work Commission, an Australian federal statutory body with jurisdiction over workplace relations matters. The primary legal issue before the Commission was whether the enterprise agreement met all the necessary requirements under the Fair Work Act 2009, particularly regarding its compliance with the low paid threshold and the process by which it was made. The Commission had to determine whether the agreement was appropriately made in accordance with the statutory process and whether it adhered to the legislative provisions concerning the low paid threshold.

The Fair Work Commission examined the submissions and evidence provided by both the union and the ABCC. It assessed whether the agreement was made in good faith and whether the parties had genuinely attempted to negotiate in the spirit of the Act. Additionally, the Commission evaluated whether the agreement complied with the low paid threshold, which requires that employees receive pay rates that are at or above the relevant award or national minimum workplace entitlements. The Commission concluded that the agreement was made in compliance with the statutory process and that it met the requirements of the Fair Work Act. The Commission found that the agreement provided for adequate pay rates and did not contravene the low paid threshold. The Commission also noted that the parties had engaged in genuine bargaining, and the agreement reflected a reasonable outcome for both employees and employers.

The Fair Work Commission approved the CEPU Plumbing Division - NSW Branch Mechanical (HVAC) Enterprise Agreement 2023-2027, finding it to be compliant with the Fair Work Act. The Commission determined that the agreement was made in good faith and provided for fair and reasonable terms and conditions for employees. The Commission also found that the agreement met the low paid threshold and provided for pay rates that were at or above the relevant award or national minimum workplace entitlements. As a result, the Fair Work Commission granted the application for approval of the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established