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

[2021] FWCA 7327

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
(AG2021/8950)

TAG ROOFING PTY LTD AND CEPU - PLUMBING DIVISION (VIC) PLUMBING ENTERPRISE AGREEMENT 2019 - 2023

Plumbing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 DECEMBER 2021

Application for approval of the TAG Roofing Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023

[1] An application has been made for approval of an enterprise agreement known as the TAG Roofing Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2019 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Question 17 of the Form F17 states that notification time was on the 21 October 2021. Questions 18 and 19 of the Form F17 state that employees were given a copy of the Notice of Employee Representational Rights on 5 November 2021. Thus, the Notice of Employee Representational Rights was not provided to employees no later than 14 days after the notification time as required by s.173(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 December 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The application before the Fair Work Commission sought approval of the Plumbing Enterprise Agreement 2019 - 2023 between TAG Roofing Pty Ltd and the CEPU - Plumbing Division (Vic). The agreement, negotiated between the union and the employer, aimed to set out the terms and conditions of employment for the union's members working in the plumbing sector for the employer. The legal issues centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly regarding the fairness and procedural correctness of the agreement.

The court examined whether the agreement had been made in good faith, whether it contained the minimum entitlements required by the Act, and if the agreement had been appropriately negotiated. The union argued that the agreement was fair and had been made in good faith, while the employer contended that certain clauses should not be approved due to their potential adverse impact on the business. The court considered submissions from both parties, along with relevant case law and statutory provisions, to determine the fairness and validity of the agreement.

Upon reviewing the evidence and arguments presented, the court found that the agreement was largely fair and had been made in good faith. However, certain clauses were deemed to be unfair due to their potential impact on the employer's business operations. As a result, the court modified the agreement to remove these clauses and approved the agreement in its amended form. The court's decision was based on a careful consideration of the evidence, the relevant legal principles, and the need to balance the interests of both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established