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

[2022] FWCA 741

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

(AG2022/493)

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

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 MARCH 2022

Application for approval of the Top Class Fire Protection 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 Top Class Fire Protection 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 2 March 2022 and, in accordance with s 54, will operate from 9 March 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

In this case, the applicant union sought the approval of the proposed enterprise agreement between Top Class Fire Protection Services Pty Ltd and the CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024. The application was made before the Fair Work Commission, a tribunal with jurisdiction over employment-related matters in Australia. The dispute arose from the union's application for approval of the enterprise agreement, which it had negotiated with the employer. The employer had not objected to the application, and thus the main issue before the tribunal was whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issue before the tribunal was whether the enterprise agreement complied with the provisions of the Fair Work Act 2009, particularly in terms of the process by which it was negotiated and the content of the agreement. The tribunal was required to consider whether the agreement was fairly and genuinely negotiated, and whether it contained terms that were consistent with the statutory obligations and public policy considerations. The tribunal also needed to ensure that the agreement was not contrary to any existing industrial instruments and that it complied with the requirements of the Fair Work Regulations 2009.

In its decision, the tribunal examined the evidence presented by the union and the employer, and found that the agreement was fairly and genuinely negotiated. The tribunal also considered the content of the agreement and found that it did not contain any terms that were contrary to the Fair Work Act 2009 or the Fair Work Regulations 2009. The tribunal noted that the agreement contained terms that were consistent with the principles of the Fair Work Act 2009 and that it did not contravene any existing industrial instruments. The tribunal was satisfied that the agreement met all the legal requirements for approval under the Fair Work Act 2009.

Accordingly, the tribunal approved the enterprise agreement between Top Class Fire Protection Services Pty Ltd and the CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024. The tribunal made an order approving the agreement as a registered agreement under the Fair Work Act 2009, effective from the date of the decision. The employer and the union were required to take all necessary steps to give effect to the terms of the agreement, and the agreement was to be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established