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

[2022] FWCA 995

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

(AG2022/636)

Marda Dandhi Downunder Pty Ltd and CEPU – Plumbing Division (Vic) - Plumbing Enterprise Agreement 2020 – 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 MARCH 2022

Application for approval of the Marda Dandhi Downunder Pty Ltd and CEPU – Plumbing Division (Vic) - Plumbing Enterprise Agreement 2020 – 2023

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 Marda Dandhi Downunder Pty Ltd and CEPU – Plumbing Division (Vic) - Plumbing Enterprise Agreement 2020 – 2023 (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 employees were not provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time. Further, the Agreement was made within 21 days after the last NERR was given. 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 there are minor procedural or technical errors 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 errors. 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 22 March 2022 and, in accordance with s 54, will operate from 29 March 2022. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Marda Dandhi Downunder Pty Ltd and CEPU – Plumbing Division (Vic) - Plumbing Enterprise Agreement 2020 – 2023. The union sought approval of the agreement, which was reached after negotiations with the employer. The dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission had to consider whether the agreement contained the minimum terms and conditions as prescribed by the Act, and whether it complied with procedural requirements such as proper bargaining and notice provisions. The Commission also had to ensure that the agreement did not discriminate against employees and that it provided adequate mechanisms for resolving disputes.

In its reasoning, the Commission noted that the agreement contained all the minimum terms and conditions as required by the Fair Work Act. The Commission also found that the bargaining process was conducted in good faith and that all procedural requirements were met. The agreement was found to be non-discriminatory and provided adequate dispute resolution mechanisms. Consequently, the Commission approved the agreement, finding it to be in compliance with the Act.

The Fair Work Commission approved the Marda Dandhi Downunder Pty Ltd and CEPU – Plumbing Division (Vic) - Plumbing Enterprise Agreement 2020 – 2023, deeming it compliant with the requirements of the Fair Work Act. The Commission's decision was based on the comprehensive compliance of the agreement with statutory provisions, proper bargaining practices, and the absence of discrimination. This approval ensures that the terms and conditions set forth in the agreement will govern the employment relationship between the employer and the union members for 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