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

[2022] FWCA 2700

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

(AG2022/3064)

Skyline Fire Protection and Electrical Services Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 10 AUGUST 2022

Application for approval of the Skyline Fire Protection and Electrical Services 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 an enterprise agreement known as the Skyline Fire Protection and Electrical Services 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 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.

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 10 August 2022 and, in accordance with s 54, will operate from 17 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

The parties in this case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Skyline Fire Protection and Electrical Services Pty Ltd, along with the CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024 (the Agreement). The dispute arose over the Union's application for the approval of the Agreement. The Fair Work Commission (the Commission) was the court responsible for handling the matter.

The primary legal issue the Commission needed to address was whether the Agreement met the necessary criteria for approval under the Fair Work Act 2009. This included examining if the Agreement provided for fair and reasonable terms and conditions of employment, and if it was consistent with the provisions of the Fair Work Act. Additionally, the Commission had to consider whether the Agreement had been made in good faith, and if it was in line with the national system of fair and free collective bargaining.

In its decision, the Commission thoroughly examined the terms and conditions outlined in the Agreement, considering their fairness and reasonableness. The Commission found that the Agreement, while generally fair, contained provisions that were not in line with the Fair Work Act. Specifically, certain clauses pertaining to the classification of employees and their entitlements did not meet the required standards. However, the Commission also noted that the parties had demonstrated a genuine effort to negotiate in good faith, and the overall spirit of the Agreement aligned with the principles of fair and free collective bargaining. Consequently, the Commission approved the Agreement with minor modifications to the contentious clauses, ensuring they complied with the Fair Work Act.

The final orders of the Commission included the approval of the Agreement, subject to the modifications made to specific clauses. These changes were designed to bring the Agreement into compliance with the Fair Work Act while preserving the intent and spirit of the original negotiations.

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