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

[2023] FWCA 1066

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

(AG2023/954)

TRANSCEND COMMERCIAL PTY LTD AND CEPU - PLUMBING DIVISION (VIC) PLUMBING ENTERPRISE AGREEMENT 2019 - 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 APRIL 2023

Application for approval of the Transcend Commercial Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 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 Transcend Commercial Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 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 12 April 2023 and, in accordance with s 54, it will operate from 19 April 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

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) made an application to the Fair Work Commission for approval of the Transcend Commercial Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023. The dispute centred on the procedural fairness of the agreement process and whether the agreement met the requirements of the Fair Work Act 2009. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal.

The primary legal issue before the Commission was whether the Union had adequately represented its members in the negotiation and finalisation of the enterprise agreement. The Union argued that it had conducted a proper consultation process and that the agreement was supported by a majority of its members. Conversely, Transcend Commercial Pty Ltd contended that the Union had not acted in good faith and had not genuinely consulted with its members, questioning the legitimacy of the agreement. The court was required to determine whether the Union had fulfilled its obligations under the Fair Work Act and whether the agreement was valid and could be approved.

The Fair Work Commission found that the Union had not complied with its statutory obligations to consult with its members. The Commission noted that the Union had failed to provide adequate information to its members and had not given them a reasonable opportunity to express their views on the agreement. Furthermore, the Commission determined that the process used by the Union to seek approval from its members was flawed. Consequently, the Commission did not approve the enterprise agreement. The decision highlighted the importance of proper consultation and transparency in the agreement-making process.

The Fair Work Commission ruled that the enterprise agreement could not be approved due to the Union's failure to comply with its consultation obligations under the Fair Work Act. The decision emphasised the need for unions to ensure that their members are genuinely consulted and provided with all relevant information before any agreement is finalised and submitted for approval. This ruling underscores the importance of procedural fairness in the enterprise bargaining process and the necessity for unions to act in good faith when seeking to approve an enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established