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

[2022] FWCA 2783

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

(AG2022/3300)

AEL Fire Solutions Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 16 AUGUST 2022

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

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of the AEL Fire Solutions Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024 (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 a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking 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.

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 16 August 2022 and, in accordance with s 54, will operate from 23 August 2022. The nominal expiry date of the Agreement is 29 February 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case before the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval for the AEL Fire Solutions Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024. The dispute centred around the proposed enterprise agreement which aimed to regulate employment terms and conditions between the union and the employer within the specified geographical and temporal limits. The Commission was tasked with determining whether the agreement complied with the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the criteria for approval as stipulated under section 231 of the Fair Work Act. This included assessing if the agreement had been fairly negotiated, if it complied with the relevant provisions of the Act, and if it met the "better off overall test." The Commission also needed to consider whether any aspects of the agreement could be referred to the Full Bench for further scrutiny or if it could be approved in its current form.

In reaching its decision, the Commission examined the process through which the agreement was negotiated, ensuring it adhered to the procedural fairness requirements. The Commission also considered the content of the agreement, evaluating whether it met the "better off overall test" which requires that employees are not worse off financially and have at least the same terms and conditions as those previously in place. Additionally, the Commission assessed the agreement against the provisions of the Fair Work Act, including provisions related to minimum standards and protections. After thorough consideration, the Commission determined that the agreement complied with all necessary legal requirements and met the "better off overall test."

Following its analysis, the Commission approved the AEL Fire Solutions Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024. The Commission's decision was communicated to the parties, and the approved agreement was registered accordingly. This outcome provides clarity and certainty regarding the terms and conditions of employment for the relevant employees, effective from the specified period.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established