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

[2024] FWCA 585

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

(AG2024/169)

B&D INSULATION CONTRACTING (QUEENS WHARF PROJECT) UNION COLLECTIVE AGREEMENT 2022

Plumbing industry
COMMISSIONER LEE	MELBOURNE, 12 FEBRUARY 2024

Application for approval of the B&D Insulation Contracting (Queens Wharf Project) Union Collective Agreement 2022

An application has been made for approval of an enterprise agreement known as the B&D Insulation Contracting (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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

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.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 32.5(a) - Family Violence leave

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 February 2024. The nominal expiry date of the Agreement is 1 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application for the approval of the B&D Insulation Contracting (Queens Wharf Project) Union Collective Agreement 2022 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The application was brought before the Fair Work Commission, the tribunal tasked with overseeing industrial relations matters in Australia. The union sought to have the agreement recognised and enforced as a valid and binding instrument governing the terms and conditions of employment for workers under the agreement.

The central legal issue before the tribunal was whether the collective agreement met the statutory requirements set out in the Fair Work Act 2009, particularly sections concerning the procedural fairness, the scope of the agreement, and whether it addressed the appropriate matters for a certified agreement. The union argued that the agreement was made in good faith and was fair and reasonable, while the employer contested several provisions, primarily on the grounds of procedural irregularities and some substantive matters.

The Fair Work Commission found that the agreement had been made in accordance with the legislative requirements. The tribunal was satisfied with the evidence presented that the union had followed proper procedures in negotiating the agreement, and the content of the agreement was fair and reasonable in the circumstances. The tribunal concluded that the procedural fairness requirements were met, and the substantive provisions of the agreement did not exceed the scope of matters that could be included in such an agreement. Consequently, the Fair Work Commission approved the B&D Insulation Contracting (Queens Wharf Project) Union Collective Agreement 2022, making it a certified agreement under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established