Empire Plumbing & Drains Pty Ltd

[2023] FWCA 1666

[2023] FWCA 1666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Empire Plumbing & Drains Pty Ltd

(AG2023/1409)

EMPIRE PLUMBING & DRAINS & CEPU ACT PLUMBING ENTERPRISE AGREEMENT 2023

Plumbing industry
COMMISSIONER MATHESON	SYDNEY, 7 JUNE 2023

Application for approval of the Empire Plumbing & Drains & CEPU ACT Plumbing Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Empire Plumbing & Drains & CEPU ACT Plumbing Enterprise Agreement 2023 (Agreement). The application was made by Empire Plumbing & Drains Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The notification time for the Agreement is a date prior to 6 June 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

1. Further, the Agreement is made prior to 6 June 2023 and the effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. The notice of employee representational rights (NERR) given to employees covered by the Agreement is not strictly in the form prescribed by the regulations. The Commission brought this concern to the attention of the Applicant who submitted that this was an error, that employees were not likely to have been disadvantaged by it and indicated that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), a bargaining representative for the Agreement, was involved in the process. In the circumstances of this matter, I am satisfied that the error was a minor technical error, that employees were not likely to have been disadvantaged by it and that this error does not prevent the Agreement from being genuinely agreed.

1. A further issue was brought to the attention of the parties by the Commission in that employees do not appear to have been notified of the voting method to be used by the start of the access period, raising a concern that there may not have been strict compliance with s.180(3) of the Act. The Applicant submitted that this was an error, that employees were not likely to have been disadvantaged by it and that it did not impact genuine agreement. In the circumstances of this matter and having regard to the strong voting turnout, to the extent the employer did not take all reasonable steps to notify employees of the voting method to be used by the start of the access period, I am satisfied that this is a minor procedural error, that employees covered by the Agreement were not disadvantaged by it and that this error does not prevent the Agreement from being genuinely agreed in accordance with s.188 of the Act.

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. 190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2023. The nominal expiry date of the Agreement is 7 June 2024.

COMMISSIONER

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Annexure A