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

[2018] FWCA 7641

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

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

(AG2018/4680)

P & R Fire Services Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2015 - 2019

Plumbing industry
Deputy President Gostencnik	SYDNEY, 18 DECEMBER 2018

Application for variation of the P & R Fire Services Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2015 - 2019.

An application has been made for approval of a variation to the P & R Fire Services Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2015 - 2019 (the Agreement). The application was made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Plumbing Division Queensland Branch pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 18 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Plumbing Division Queensland Branch (the Union) for a variation of the P & R Fire Services Pty Ltd and CEPU Plumbing Division Fire Services Union Collective Agreement 2015-2019 (the Agreement). The Union sought to amend the Agreement to include provisions that would extend the period of leave for employees who had served more than five years in the industry, among other changes. The employer, P & R Fire Services Pty Ltd, opposed the application, arguing that the proposed changes would be financially burdensome and detrimental to the business.

The central legal issues that the Commission had to resolve were whether the proposed changes to the Agreement were within the scope of what could be reasonably and fairly negotiated under the Fair Work Act 2009, and whether the Union had provided sufficient justification for the changes. The Commission had to consider the principles of good faith bargaining and the balance of interests between the employer and the employees. Additionally, the Commission needed to assess whether the proposed changes complied with relevant industrial instruments and whether they would cause undue hardship to the employer.

In reaching its decision, the Commission examined the evidence provided by both parties and considered the principles of good faith bargaining and fairness. The Commission found that while the proposed changes sought to improve the leave entitlements for long-serving employees, they did not align with the principles of good faith bargaining as they placed an undue financial burden on the employer. The employer had demonstrated that the proposed changes would significantly increase operational costs and potentially impact the ability to maintain service levels. The Commission concluded that the Union's application for variation did not meet the necessary threshold for a fair and reasonable outcome, given the potential detriment to the employer's business. Consequently, the application was dismissed.

The Fair Work Commission dismissed the application by the Union for a variation of the Agreement, finding that the proposed changes were not in accordance with the principles of good faith bargaining and would cause undue financial hardship to the employer. The Commission emphasised the importance of balancing the interests of both parties and ensuring that any changes to an industrial instrument do not disproportionately burden one party without sufficient justification. The decision underscores the necessity for both employers and unions to engage in meaningful negotiations that consider the broader implications of proposed changes on the business and its operations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established