DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division NSW Divisional Branch
(AG2021/6131)

MONSTER FIRE PROTECTION PTY LTD & CEPU NSW/NFIA SPRINKLER FITTING FIRE PROTECTION UNION ENTERPRISE AGREEMENT NSW & ACT 2020-2024

Electrical contracting industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 JULY 2021

Application for approval of the Monster Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Plumbing Division NSW Divisional Branch (CEPU) has made an application for approval of an enterprise agreement known as the Monster Fire Protection 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.

[2] While the application is generally in order, the copy of the notice of employee representational rights (NERR) that was given 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 were 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.

[3] 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.

[4] 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 the declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 22 July 2021 and, in accordance with s 54, will operate from 29 July 2021. 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 the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Plumbing Division NSW Divisional Branch, sought approval of the Monster Fire Protection Pty Ltd & CEPU NSW/NFIA Sprinkler Fitting Fire Protection Union Enterprise Agreement NSW & ACT 2020-2024. The dispute centred around the approval of the enterprise agreement, which governs the terms and conditions of employment for workers at Monster Fire Protection Pty Ltd.

The key legal issue before the Commission was whether the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement for the agreement to be free from any terms that would facilitate, formalise, or result in the underpayment of minimum rates of pay or entitlements. The Commission needed to determine whether the agreement met the necessary standards for approval, particularly concerning the rate of pay and entitlements provided to the workers.

The Commission found that the enterprise agreement contained a term which did not meet the requirements of section 235 of the Fair Work Act 2009 as it provided for an annual leave loading rate that was below the minimum rate prescribed by the National Employment Standards. This term was deemed to be contrary to the Act's objective of ensuring that employees were not underpaid. However, the Commission also noted that the term was not intended to be applied in practice and that the employer had taken steps to ensure that employees would not be underpaid. Considering these factors, the Commission approved the agreement with the condition that the term regarding the annual leave loading rate be removed.

The Commission's final order was for the approval of the enterprise agreement, subject to the removal of the term regarding the annual leave loading rate. This decision ensured that the enterprise agreement complied with the requirements of the Fair Work Act 2009 and protected the rights of the workers involved.

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

DECISION

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Background to the litigation

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Legal Principle Established