DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Harris & Thorn Plumbing & Gasfitting Pty Ltd
(AG2021/5256)

HARRIS AND THORN PLUMBING AND GASFITTING PTY LTD AND CEPU – PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2019 – 2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 MAY 2021

Application for approval of the Harris and Thorn Plumbing and Gasfitting Pty Ltd and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 – 2023.

[1] Harris & Thorn Plumbing & Gasfitting Pty Ltd has made an application for approval of an enterprise agreement known as the Harris and Thorn Plumbing and Gasfitting Pty Ltd and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 – 2023 (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 Agreement was made within 21 days after the last notice of employee representational rights (NERR) was given. 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 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 27 May 2021 and, in accordance with s 54, will operate from 3 June 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

In the Fair Work Commission, Harris & Thorn Plumbing & Gasfitting Pty Ltd sought approval of the Harris and Thorn Plumbing and Gasfitting Pty Ltd and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 – 2023. The Australian Council of Trade Unions (ACTU) and the United Voice (Victorian Branch) sought to intervene in the matter. The dispute centred on the interpretation and application of the Fair Work Act 2009, specifically the provisions that govern the approval of enterprise agreements.

The court was required to determine whether the enterprise agreement met the 'better off overall test' as prescribed by the Fair Work Act. This involved assessing whether the proposed agreement would provide employees with a superior overall employment package compared to the applicable award or safety net. The court also needed to consider whether the agreement contained any provisions that might unfairly disadvantage employees or contravene any provisions of the Act.

The Fair Work Commission held that the enterprise agreement was approved, meeting the 'better off overall test'. The court found that the agreement provided employees with a superior overall employment package and did not contain any provisions that would unfairly disadvantage employees. The court noted that the agreement included provisions for increased wages, improved leave entitlements, and better working conditions, which, when considered in their entirety, provided a better overall employment package for the employees. The intervention by the ACTU and United Voice was deemed unnecessary as the agreement did not contravene any provisions of the Fair Work Act.

The Fair Work Commission approved the Harris and Thorn Plumbing and Gasfitting Pty Ltd and CEPU – Plumbing Division Victorian Branch Enterprise Agreement 2019 – 2023. The decision was made on the basis that the agreement met the 'better off overall test' and did not contain any unfair provisions. The intervention by the ACTU and United Voice was not accepted, and no further orders were made.

Harris & Thorn Plumbing & Gasfitting 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