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

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Havendeen Roofing Pty Ltd. The union sought a variation of the existing collective agreement, the Havendeen Roofing Pty Ltd and CEPU Division Roofing Union Collective Agreement 2015 - 2019. The union argued that certain clauses within the agreement were outdated and did not adequately reflect the current working conditions and compensation standards. The primary legal issues that the commission was required to decide revolved around the interpretation of the relevant sections of the Fair Work Act 2009, specifically regarding the circumstances under which a collective agreement can be varied. The commission needed to determine if the union had provided sufficient evidence to demonstrate that the proposed changes were necessary and in the best interest of the employees.

The Fair Work Commission carefully considered the arguments presented by both parties, examining the evidence and submissions to ascertain whether the proposed changes would indeed improve the conditions for the employees. The commission assessed the union's claims about the outdated nature of certain clauses and whether these clauses adversely affected the employees' rights and entitlements. It also evaluated whether the changes proposed by the union were reasonable and necessary. Ultimately, the commission found that the union had adequately demonstrated that certain provisions of the existing agreement were indeed outdated and that the proposed changes would better reflect current industry standards and employee needs. Consequently, the commission approved the variation of the collective agreement as sought by the union.

The Fair Work Commission's decision not only addressed the immediate concerns of the union but also provided a clear precedent for future negotiations between employers and unions in similar circumstances. By recognising the need for timely updates to collective agreements, the decision reinforced the importance of ensuring that employment conditions remain fair and reflective of current industry practices. This ruling serves as a reminder to all parties involved in collective bargaining that the Fair Work Act aims to promote fair and equitable working conditions, and agreements must be regularly reviewed and updated to meet these objectives.

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

DECISION

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Legal Principle Established