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

[2022] FWC 3358

[2022] FWC 3358

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

(AG2022/4981)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 DECEMBER 2022

Application for approval of the Threaded Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024 - application dismissed

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application under s 185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement known as the Threaded Fire Protection Pty Ltd & CEPU/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024 (Agreement). The Agreement covers employees of Threaded Fire Protection Pty Ltd (company), a fire protection business.

1. On 6 December 2022 my chambers wrote to the CEPU and the company raising two concerns as to whether the Commission could be satisfied of relevant approval requirements. First, some of the provisions in the Agreement appeared not to accord with the National Employment Standards (NES). Secondly, the rates of pay provided under the Agreement for first and second year adult apprentices were some 2.69% below the relevant award rates of pay. The company was invited to offer undertakings to address these matters.

1. On 15 December 2022, having received no response from the employer, my associate endeavoured to contact the company by telephone but was unable to reach anyone. On 12 December 2022, my chambers sent further correspondence to the company and the union, noting that a response to the issues raised by the Commission was overdue, and that the employer should respond by no later than 14 December 2022. Still no response was received.

1. On 19 December 2022, my chambers sent an email message to the company and the union, stating that without undertakings the Agreement was incapable of approval, and that if the Commission did not receive the necessary undertakings by 4.00pm on 22 December 2022, the application for approval of the Agreement would be dismissed.

1. The employer has not provided the required undertakings and has not responded to the issues raised in the correspondence of 6 December 2022.

1. In order to approve an enterprise agreement, the Commission must be satisfied that its terms do not contravene s 55 (which deals with the interaction between the NES and enterprise agreements) and that the agreement passes the ‘better off overall test’ (see ss 186(2)(c) and (d) of the Act). I am not satisfied that either of these requirements have been met. I consider that the parties have been provided with a reasonable opportunity to address the concerns that were raised on 6 December 2022. The Agreement remains incapable of approval.

1. The application is dismissed.

DEPUTY PRESIDENT

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