Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v B & E Trevena & Sons T/A Trevsons Nominees Pty Ltd

[2015] FWCFB 5125

[2015] FWCFB 5125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
B & E Trevena & Sons T/A Trevsons Nominees Pty Ltd
(C2015/3136)

SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE SYDNEY, 11 AUGUST 2015

Appeal against decision – approval of variation to enterprise agreement – procedural fairness.

[1] This is an appeal by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) (the appellant) under s.604 of the Fair Work Act 2009 (the Act) against a decision of Commissioner Blair 1 on 2 June 2015 to approve a variation to the Trevsons Nominees Pty Ltd (Trading as B & E Trevena & Sons) and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011 - 2015 (the agreement).

[2] On 19 May 2015, an application was made by B&E Trevena & Sons T/A Trevsons Nominees Pty Ltd (the employer) to vary the agreement. On 26 May 2015 the employer representative wrote to the Commission in response to correspondence from the Commissioner to advise that ‘the CEPU are covered by the Agreement, however, they are not proposed to be covered the Variation Agreement’.

[3] On 2 June 2015 the CEPU became aware that the agreement had been approved by Commissioner Blair.

[4] The second ground of the appeal is that the Commissioner erred in approving the variation to the agreement in circumstances where the appellant was bound by the agreement but had not been given an opportunity to be heard in relation to the decision to approve the variation of the agreement.

[5] The employer has written to the Full Bench indicating that it accepts that the CEPU was not afforded procedural fairness in relation to the variation to the agreement and would consent to appeal ground 2 being upheld by the Full Bench. The matter has been dealt with on the papers.

[6] On the basis of the consent position of both parties we make the following findings:

● The appellant was an employee organisation that was covered by the agreement;

● The appellant was a bargaining representative for employees who were covered by the agreement;

● On 29 April 2015 the employer commenced a process whereby it sought to vary the agreement;

● The proposed variations were purportedly made on 8 May 2015 and were approved by Commissioner Blair on 2 June 2015;

● The appellant was not informed of the proposed variations or given an opportunity to be heard in relation to the decision to approve them;

● The failure to provide the appellant with an opportunity to be heard in relation to the decision to approve the proposed variations amounted to an inadvertent denial of procedural fairness to the appellant.

[7] In the circumstances, the most appropriate course is for the Full Bench to grant permission to the CEPU to appeal, allow the appeal, and quash the Commissioner’s decision.

[8] We so decide and order.

[9] The application to vary the agreement is remitted to Commissioner Lee.

SENIOR DEPUTY PRESIDENT

 1  [2015] FWCA 3723

Printed by authority of the Commonwealth Government Printer

<Price code A, PR569878>