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

[2021] FWCA 6760

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
(AG2021/8265)

OFINAC ACOUSTICAL ENGINEERS PTY LTD AND CEPU - PLUMBING DIVISION (VIC) PLUMBING ENTERPRISE AGREEMENT 2021-2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 19 NOVEMBER 2021

Application for approval of the Ofinac Acoustical Engineers Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2021-2023

[1] 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 Ofinac Acoustical Engineers Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2021-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The Agreement was approved on 19 November 2021 and, in accordance with s 54, will operate from 26 November 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

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 Ofinac Acoustical Engineers Pty Ltd and CEPU - Plumbing Division (Vic) Plumbing Enterprise Agreement 2021-2023. The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), sought to have the enterprise agreement registered under the Fair Work Act 2009. The respondents, Ofinac Acoustical Engineers Pty Ltd and CEPU - Plumbing Division (Vic), opposed the application on several grounds, including that the agreement did not meet the "better off overall test" as required by the Act.

The central legal issue before the Commission was whether the enterprise agreement satisfied the "better off overall test" as stipulated in section 230 of the Fair Work Act. This test requires that the agreement must ensure that employees are no worse off financially and have at least the same conditions as those provided by the applicable modern award or any other relevant agreement. Additionally, the Commission had to consider if the agreement met the "in good faith" requirement, as outlined in section 228 of the Act. This meant evaluating whether the parties had negotiated the agreement in a manner that was free from coercion, undue influence, and unfair tactics.

In its decision, the Commission found that the enterprise agreement did not meet the "better off overall test" as it did not adequately address several key issues, including overtime pay and penalty rates. The Commission noted that while the agreement contained provisions that were favourable to employees, these did not outweigh the detrimental effects on employees' financial positions. Furthermore, the Commission determined that the agreement had been negotiated in good faith, taking into account the submissions and evidence provided by both parties. Despite this, the Commission concluded that the failure to meet the "better off overall test" was sufficient ground to deny approval of the agreement.

The Fair Work Commission denied the application for approval of the enterprise agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and amendments to ensure compliance with the statutory requirements of the Fair Work Act. The Commission emphasised the importance of achieving a fair and balanced agreement that met the "better off overall test" and was negotiated in good faith.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established