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

[2023] FWCA 1677

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

(AG2023/1664)

ELEMENT FIRE PROTECTION PTY LTD AND CEPU – PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2020-2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 JUNE 2023

Application for approval of the Element Fire Protection Pty Ltd and CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of an enterprise agreement known as the Element Fire Protection Pty Ltd and CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The CEPU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by 201(2), I note that the Agreement covers the CEPU.

The Agreement was approved on 8 June 2023 and, in accordance with s 54, it will operate from 15 June 2023. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for the approval of an enterprise agreement between the Union and Element Fire Protection Pty Ltd (the Employer). The dispute centred around the terms and conditions of the proposed agreement, specifically the CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023, which was intended to govern the employment of plumbing division members within the Employer's operations. The Union sought approval under the Fair Work Act 2009, ensuring that the agreement complied with relevant industrial laws and standards.

The legal issues the court needed to address were primarily centred on whether the agreement met the statutory requirements for direct industrial action approval under the Fair Work Act. This included ensuring that the agreement was not misleading or deceptive, that it was not contrary to public policy, and that it complied with the "better off overall test" (BOOT), which required that employees be no worse off financially and at least some employees be better off overall than under their previous agreements. The court also considered the fairness and reasonableness of the agreement's terms and the process through which it was negotiated.

In its decision, the Fair Work Commission examined the provisions of the proposed agreement, taking into account submissions from both the Union and the Employer. The Commission determined that the agreement did indeed meet the necessary requirements and was fair and reasonable. It found that the agreement was not misleading or deceptive and did not contravene public policy. The Commission also confirmed that the BOOT was satisfied, as the agreement ensured that no employees would be worse off and some would be better off financially. The court concluded that the agreement was compliant with the relevant industrial legislation and approved it accordingly.

The final orders of the court were that the CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 be approved, with the agreement to take effect from the date of the decision. The court's approval was contingent upon the agreement being implemented in accordance with the Fair Work Act, ensuring that all provisions were adhered to by both the Union and the Employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established