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

[2019] FWC 6287

[2019] FWC 6287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2019/485)

HAVENDEEN ROOFING PTY LTD AND CEPU PLUMBING DIVISION ROOFING UNION COLLECTIVE AGREEMENT 2016 - 2019

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 SEPTEMBER 2019

Application for variation of the Havendeen Roofing Pty Ltd and CEPU Division Roofing Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of a variation to the Havendeen Roofing Pty Ltd and CEPU Plumbing Division Roofing Union Collective Agreement 2016 – 2019. (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved on 2 June 2016. A subsequent variation to the Agreement was approved on 8 February 2018.

[3] On 29 March 2019 staff of the Fair Work Commission (the Commission) sent an email to the Applicant’s representative Ms Shari Charrington noting concerns relating to the application, most notably in relation to compliance with section 211(1) of the Act and concern relating to coverage of the Variation.

[4] On 3 April 2019 a request was received from Ms Charrington, seeking an extension of time to provide a response. This extension request was granted.

[5] On 5 April 2019 a further request was received from Ms Charrington seeking an extension of time to provide a response. This extension request was granted.

[6] On 12 April 2019 a further request was received from Ms Charrington seeking an extension of time to provide a response. This extension request was granted.

[7] On 17 April 2019 a further request was received from Ms Charrington seeking an extension of time to provide a response. This extension request was granted.

[8] Between 2 May 2019 and 25 July 2019 several emails were sent to the Applicant seeking further information. The responses received were either inadequate or a response was not received at all.

[9] On 25 July 2019 a response was received from the Applicant seeking the application be decided on the material previously provided.

[10] On 5 August 2019 an email was sent to the Applicant noting that based on the material previously provided the Deputy President is not satisfied all employees were provided with the opportunity to vote on the Variation and therefore the application is unable to be approved.

[11] On 6 August 2019 a response was received from the Applicant to the concerns outlined.

[12] On 21 August 2019 staff of the Commission sent an email to the Applicant noting that the response provided appears to contradict the responses provided on the Form F23A statutory declaration provided at lodgement of the Application. It was noted that the requirements of section 211 of the Fair Work Act 2009 (the Act) do not appear to have been complied with and the application may not be able to be approved. No response was received.

[13] On 2 September 2019 staff of the Commission sent an email to the Applicant noting no response had been received and providing that the application may be dismissed if no response is received.

[14] Section 210 and section 211 of the Act sets out requirements for the Commission’s approval of a variation of an enterprise agreement.

[15] Section 211(1) requires the Commission approve a variation is the Commission is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186.

[16] Section 180(3) of the Act requires an employer to take all reasonable steps to notify the relevant employees of the date and place at which the vote will occur and of the voting method to be used “by the start of the access period”.

[17] The response to questions 2.7 of the Form F23A provides that 2 employees were affected by the variation, however the response provided in a statutory declaration on 6 August 2019 provided for 17 employees to be covered by the Enterprise Agreement.

[18] I am not satisfied the requirements of section 211 of the Act have been met. The material that is contained in the Form F23A does not provide a basis on which I might be satisfied that the Applicant has complied with some of the required steps before asking employers to approve the Variation.

[19] I am also not satisfied that relevant employees genuinely agreed to the variation because I am not satisfied that the Applicant complied with section 180(3) of the Act.

[20] The Applicant has been given opportunities to provide further information but has provided no response despite efforts by staff of the Commission to procure an explanation.

[21] For these reasons the Application is dismissed.

DEPUTY PRESIDENT

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