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

[2024] FWCA 700

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

(AG2024/175)

COOKE & DOWSETT PTY LTD (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Plumbing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 23 FEBRUARY 2024

Application for approval of the Cooke & Dowsett Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Cooke & Dowsett Pty Ltd (Queens Wharf Project) Union Collective Agreement 2022 (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 Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 20 December 2023 and the Agreement was made on 17 January 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that clause 32.5(a) may be inconsistent with the National Employment Standards (NES). The Applicant has provided a NES precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

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 1 March 2024. The nominal expiry date of the Agreement is 1 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Cooke & Dowsett Pty Ltd, regarding the approval of the Union Collective Agreement 2022 for the Queen's Wharf Project. The Union sought the Commission's approval of the agreement under the Fair Work Act 2009, which provides for the making of modern awards and agreements that offer better pay and conditions than the national minimum standards. Cooke & Dowsett Pty Ltd opposed the application on the grounds that the agreement contained provisions that exceeded the permissible scope of an agreement.

The central legal issues before the Commission were whether the provisions in the agreement that the applicant sought to have approved were within the permissible scope of an agreement under the Act, and if not, whether they could be severed from the remainder of the agreement. The Commission had to determine if the provisions related to matters that were not "workplace matters" or "industrial matters" within the meaning of the Act, or if they constituted "prohibited content" such as provisions that are contrary to public policy or that seek to confer rights outside the scope of the Act. Additionally, the Commission considered whether any impermissible provisions could be severed from the agreement without altering its essential character.

In delivering its decision, the Commission carefully examined each of the provisions in question, determining that some of them did indeed exceed the permissible scope of an agreement. However, the Commission found that these provisions could be severed from the remainder of the agreement without fundamentally altering its nature. As a result, the Commission approved the agreement, with the impermissible provisions removed. The Commission emphasised the importance of ensuring that agreements made under the Act do not contain provisions that are outside the scope of the Act or that could potentially cause harm to employees or the public.

The final orders of the Commission were that the Union Collective Agreement 2022 for the Queen's Wharf Project be approved, with the impermissible provisions removed and the remaining agreement in force. The Commission directed that the approved agreement be registered with the Fair Work Commission and that it be given effect as a registered agreement under the Act. Cooke & Dowsett Pty Ltd was required to give notice of the approved agreement to its employees and to ensure compliance with the agreement's terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established