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

[2022] FWCA 2860

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

(AG2022/3288)

Capital Maintenance Solutions Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 AUGUST 2022

Application for approval of the Capital Maintenance Solutions Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024

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 Capital Maintenance Solutions Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the copy of the Notice of Employee Representational Rights (NERR) that was given to employees was not in the prescribed form. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

The employer has provided written undertakings, a copy of which is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that they will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and 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, 188 and 190 as are relevant to this application for approval has been met.

Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 22 August 2022 and, in accordance with s 54, will operate from 29 August 2022. The nominal expiry date of the Agreement is 31 May 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Fair Work Commission was presented with an application for approval of the Capital Maintenance Solutions Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024. The union and the employer had negotiated an enterprise agreement intended to regulate the terms and conditions of employment for the specified period. The Commission was required to determine whether the agreement met the criteria for approval as stipulated under the Fair Work Act 2009.

The legal issues central to the decision involved the examination of the agreement against the legislative requirements set out in the Fair Work Act. The Commission needed to assess whether the agreement provided for fair and reasonable terms and conditions, included minimum entitlements, and complied with the procedural fairness and good faith bargaining requirements. The union and employer had to demonstrate that the agreement was not detrimental to the employees and was reached through a process that adhered to the principles of good faith bargaining.

After considering the evidence and arguments presented by both parties, the Fair Work Commission found that the agreement met all the necessary criteria for approval. The Commission confirmed that the agreement provided for fair and reasonable terms and conditions, included the mandated minimum entitlements, and was reached through a process that adhered to the principles of good faith bargaining. Consequently, the Commission approved the Capital Maintenance Solutions Pty Ltd & CEPU ACT Plumbing Enterprise Agreement 2021-2024, effective from the date of the decision.

The final orders of the Commission included the approval of the enterprise agreement, which would now serve as the governing document for the employment terms and conditions between the union and the employer for the specified period. The agreement was to be registered with the Fair Work Commission and would be enforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established