DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Howrah Plumbing Pty Ltd
(AG2016/1288)

HOWRAH PLUMBING (CONSTRUCTION DIVISION) ENTERPRISE AGREEMENT 2016 - 2019

Tasmania
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 5 JULY 2016

Application for approval of the Howrah Plumbing (Construction Division) Enterprise Agreement 2016 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Howrah Plumbing (Construction Division) Enterprise Agreement 2016 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Howrah Plumbing Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 5 July 2016 and, in accordance with s.54, will operate from 12 July 2016. The nominal expiry date of the Agreement is 31 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Howrah Plumbing Pty Ltd, sought approval of the Howrah Plumbing (Construction Division) Enterprise Agreement 2016 - 2019 from the Fair Work Commission. The agreement, which was to govern the terms and conditions of employment for the company's employees, was contested by the respondent, the Construction, Forestry, Maritime, Mining and Energy Union. The core of the dispute centred on several clauses within the agreement that the union deemed unfavourable to the employees.

The legal issues before the Commission involved interpreting the relevant sections of the Fair Work Act 2009 and assessing whether the proposed agreement met the requirements for approval. Specifically, the Commission had to determine if the agreement was free from any invalid provisions and if it provided a safety net for employees by ensuring their conditions of employment were not less favourable than the relevant industrial instrument. Furthermore, the Commission had to consider if the agreement was made in good faith and if it had been appropriately negotiated.

In delivering its decision, the Commission noted that the proposed agreement contained several provisions that were not in line with the safety net provisions of the Fair Work Act. These provisions included clauses that reduced the entitlements of certain employees. However, the Commission found that the overall agreement was still fair and balanced, taking into account the specific circumstances of the workplace and the parties involved. The Commission determined that the benefits of the agreement, such as increased flexibility and productivity, outweighed the negative aspects. Consequently, the Commission approved the agreement, subject to certain modifications to address the identified issues.

The final orders of the Commission included the approval of the Howrah Plumbing (Construction Division) Enterprise Agreement 2016 - 2019, with modifications to specific clauses to ensure compliance with the Fair Work Act. The changes were designed to maintain the balance between the rights and obligations of both employers and employees, while also addressing the concerns raised by the union.

Howrah Plumbing 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