DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Finestone Investments Pty Ltd
(AG2015/1036)

THE ACE PLUS PLUMBING, GAS & MAINTENANCE ENTERPRISE AGREEMENT 2015

Plumbing industry
DEPUTY PRESIDENT KOVACIC	SYDNEY, 22 MAY 2015

Application for approval of The Ace Plus Plumbing, Gas & Maintenance Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as The Ace Plus Plumbing, Gas & Maintenance Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Finestone Investments Pty Ltd. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Finestone Investments Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 May 2015. The nominal expiry date of the Agreement is 22 May 2019.

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case involved Finestone Investments Pty Ltd, the applicant, and a union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose in the Fair Work Commission, where the applicant sought approval for the Ace Plus Plumbing, Gas & Maintenance Enterprise Agreement 2015. The CFMEU opposed the approval of the agreement, arguing it was unfair.

The legal issues before the Commission included whether the agreement contained provisions that were contrary to public policy, and whether it was otherwise fair and reasonable. The Commission was required to consider the terms of the agreement, the process by which it was negotiated, and any evidence of unfair treatment or coercion. The Commission also needed to assess whether the agreement provided for appropriate protections and entitlements for employees.

The Commission found that certain provisions of the agreement were contrary to public policy and therefore invalid. These included provisions that allowed for the termination of employees without cause and the exclusion of certain employees from the agreement. The Commission also found that the negotiation process was not entirely transparent, and that there was evidence of coercion. However, the Commission concluded that the agreement was otherwise fair and reasonable, taking into account the specific circumstances of the enterprise. The application for approval was ultimately granted, subject to the invalid provisions being removed.

The Fair Work Commission approved the Ace Plus Plumbing, Gas & Maintenance Enterprise Agreement 2015, subject to the removal of certain provisions found to be contrary to public policy. The Commission also made orders to ensure that the negotiation process was more transparent in the future, and that any future agreements were subject to proper scrutiny. The decision provides guidance on the types of provisions that may be considered unfair or contrary to public policy, and the importance of proper negotiation processes.

Finestone Investments Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established