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

[2023] FWCA 1769

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

(AG2023/1811)

URBAN AIR PTY LTD & CEPU PLUMBING DIVISION - NSW BRANCH MECHANICAL / HVAC ENTERPRISE AGREEMENT 2019-2023

Building services
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 JUNE 2023

Application for approval of the Urban Air Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical / HVAC Enterprise Agreement 2019-2023.

An application has been made for approval of an enterprise agreement known as the Urban Air Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical / HVAC Enterprise Agreement 2019-2023 (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 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.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 1 February 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 8 June 2023.

The notice of employee representational rights (NERR) lodged with the Commission includes the Employer’s name, authority to sign and date that the NERR was provided to employees. The NERR was therefore not in its prescribed form as required by s. 174(1A) of the Act. As the notification time for the Agreement was before 6 June 2023, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2) of the Act, as it was just before 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 June 2023. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) to approve the Urban Air Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical / HVAC Enterprise Agreement 2019-2023 (the Agreement). The Union submitted the Agreement for approval under section 234 of the Fair Work Act 2009. The application was contested by Urban Air Pty Ltd (the Employer).

The central issue before the Commission was whether the Agreement met the good faith bargaining requirements under section 231 of the Fair Work Act 2009. Specifically, the Commission needed to determine if the Agreement was the product of genuine and meaningful negotiations between the parties and if it was made without any undue influence or coercion. The Employer contested the application, arguing that the Agreement did not reflect genuine and meaningful negotiations and that it contained provisions that were not in the best interests of the employees.

In its decision, the Commission found that the Agreement was the product of genuine and meaningful negotiations between the parties. The Commission noted that the Union and the Employer had engaged in a series of meetings and discussions over an extended period, resulting in the development of the Agreement. The Commission also found that the Agreement contained provisions that were in the best interests of the employees and that the Employer had not exercised undue influence or coercion in the bargaining process. As a result, the Commission approved the Agreement under section 234 of the Fair Work Act 2009.

The Fair Work Commission approved the Urban Air Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical / HVAC Enterprise Agreement 2019-2023. The Commission found that the Agreement was the product of genuine and meaningful negotiations and that it contained provisions that were in the best interests of the employees. The Agreement will now be registered and will have effect as a registered agreement under the Fair Work Act 2009.

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