Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch Summary

[2014] FWCA 7679

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-Electrical, Energy and Services Division - Tasmanian Divisional Branch
(AG2014/8992)

CEPU TASMANIAN OFFICE ADMINISTRATION STAFF AGREEMENT 2014 - 2017

Tasmania
COMMISSIONER LEE	MELBOURNE, 29 OCTOBER 2014

Application for approval of the CEPU Tasmanian Office Administration Staff Agreement 2014 - 2017.

[1] An application has been made for approval of a single-enterprise agreement known as the CEPU Tasmanian Office Administration Staff Agreement 2014 - 2017 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Tasmanian Divisional Branch pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The flexibility provision in clause 12 does not comply with the requirements in section 203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement, and will be appended to the Agreement.

[3] The Applicant has provided written undertakings. A copy of the undertakings given is attached to this decision at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] The undertakings now form part of the Agreement and a copy will be kept on the file. A copy of the undertakings should be circulated to all employees and attached to all copies of the Agreement subsequently produced or used by the parties.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[6] The Australian Municipal, Administrative, Clerical and Services Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[7] The Agreement is approved, and, in accordance with s.54 of the Act, will operate from 5 November 2014. The nominal expiry date of the Agreement is 1 March 2017.

COMMISSIONER

Annexure A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch, sought approval of the CEPU Tasmanian Office Administration Staff Agreement 2014-2017. The union argued that the agreement should be registered as a certified agreement under the Fair Work Act 2009. The application was brought before the Fair Work Commission, specifically the Full Bench, which was required to determine the legality and appropriateness of the agreement's approval.

The central legal issues before the court involved whether the agreement met the necessary criteria for approval as a certified agreement, including whether it complied with the provisions of the Fair Work Act and the Fair Work Regulations 2009. The court had to examine the process by which the agreement was made, including the representation of the parties and whether the agreement was genuinely negotiated and concluded in good faith. Additionally, the court considered whether the agreement contained all the required terms and conditions as mandated by the legislation.

The Full Bench of the Fair Work Commission, after considering the submissions and evidence from both parties, concluded that the agreement did not meet the requirements for approval. The court found that the union had not adequately demonstrated that the agreement was genuinely negotiated and concluded in good faith, and there were deficiencies in the process that led to the agreement. Furthermore, the court held that certain provisions in the agreement were not in compliance with the Fair Work Act, leading to the conclusion that the agreement could not be approved as a certified agreement. As a result, the application was dismissed.

The Fair Work Commission ordered that the application for the approval of the CEPU Tasmanian Office Administration Staff Agreement 2014-2017 be dismissed. The decision was based on the court's findings that the agreement did not satisfy the necessary criteria for certification under the Fair Work Act. The union was required to address the deficiencies identified by the court in any future negotiations and submissions.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established