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

[2022] FWCA 1114

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

(AG2022/847)

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

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 MARCH 2022

Application for approval of the Protectacon 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 Protectacon 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) provided 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.

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 30 March 2022 and, in accordance with s 54, will operate from 6 April 2022. The nominal expiry date of the Agreement is 29 February 2024.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application for the approval of an enterprise agreement between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Protectacon Services Pty Ltd. The agreement was proposed to cover employees of Protectacon Services Pty Ltd in New South Wales and the Australian Capital Territory. The dispute involved the union and the employer seeking to have the proposed enterprise agreement formally recognised and approved by the Commission, in accordance with the Fair Work Act 2009.

The primary legal issues the Commission had to resolve were whether the proposed agreement met the requirements for approval under the Fair Work Act, including compliance with the 'better off overall test' and whether the agreement had been made in accordance with the procedural requirements. The Commission needed to determine whether the agreement provided employees with terms and conditions that were at least as good as the applicable award or modern award, and whether the agreement was made fairly and in good faith. Additionally, the Commission had to consider whether the agreement contained permissible provisions and was consistent with the national system of industrial relations.

The Fair Work Commission determined that the proposed agreement satisfied the necessary criteria for approval. The Commission found that the agreement provided employees with terms and conditions that were at least as good as the applicable award, thus meeting the 'better off overall test'. It was also established that the agreement had been made fairly and in good faith, and all procedural requirements had been met. The provisions of the agreement were deemed permissible and did not contravene any provisions of the Fair Work Act or the national system of industrial relations.

Consequently, the Fair Work Commission approved the Protectacon Services Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024. The agreement was to be registered and would take effect from the date of the Commission's approval, binding both the employer and the employees covered by the agreement.

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