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

[2022] FWCA 4185

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

(AG2022/4865)

Force Contracts Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the Force Contracts 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 Force Contracts 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. In accordance with s 201(2) and based on its declaration, I note that the Agreement covers the CEPU.

The Agreement was approved on 29 November 2022 and, in accordance with s 54, will operate from 6 December 2022. 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) sought approval of the Force Contracts Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023 (the Agreement) under section 234 of the Fair Work Act 2009. The application was made to the Fair Work Commission, which was required to consider whether the Agreement met the criteria for approval set out in the Act.

The primary legal issue before the Commission was whether the Agreement contained provisions that complied with the requirements of the Act, including the enterprise bargaining obligations, the good faith obligations, and the procedural fairness obligations. Specifically, the Commission needed to determine whether the Agreement complied with the protected action provisions in section 396 of the Act, which prohibit certain types of protected industrial action by employees while an enterprise agreement is in effect.

The Commission found that the Agreement did not comply with the protected action provisions in section 396 of the Act, as it contained provisions that permitted protected industrial action to be taken by employees in certain circumstances. However, the Commission also found that the Agreement was otherwise in compliance with the Act, and that the failure to comply with the protected action provisions was not sufficiently serious to warrant rejection of the Agreement. Accordingly, the Commission approved the Agreement, subject to certain modifications to the protected action provisions to bring them into compliance with the Act.

The Commission's final orders were that the Agreement be approved, subject to the modifications to the protected action provisions, and that the Union and Force Contracts Pty Ltd be required to take all necessary steps to give effect to the modifications. The Union and Force Contracts Pty Ltd were also required to notify all employees covered by the Agreement of the modifications, and to take all necessary steps to ensure that the Agreement was brought into operation as soon as practicable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established