DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Walker Fire Protection Pty Ltd
(AG2021/4291)

WALKER FIRE PROTECTION AND CEPU - PLUMBING DIVISION (VIC) FIRE PROTECTION AGREEMENT VICTORIA 2020-2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 MARCH 2021

Application for approval of the Walker Fire Protection and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023.

[1] Walker Fire Protection Pty Ltd has made an application for approval of an enterprise agreement known as the Walker Fire Protection and CEPU - Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 (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 employees were not provided with the voting instructions seven clear days before the vote. 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). Further, I am satisfied 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 30 March 2021 and, in accordance with s 54, will operate from 6 April 2021. The nominal expiry date of the Agreement is 31 October 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Walker Fire Protection Pty Ltd, the applicant sought approval for the Fire Protection Agreement between the applicant and the CEPU – Plumbing Division (Vic) for the period 2020-2023. The application was heard in the Fair Work Commission. The primary dispute centred on whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009, specifically regarding the procedural fairness afforded to employers during the negotiation and approval process.

The court was tasked with determining whether the procedural fairness requirements under the Fair Work Act were met in the context of the agreement's negotiation and submission. This involved assessing whether the employer representatives had adequate opportunity to participate in and influence the negotiation process and whether the process was transparent and fair. The court also needed to consider whether the agreement itself was consistent with the objectives of the Fair Work Act, including ensuring that it provided for fair and efficient workplace relations.

The Fair Work Commission found that the procedural fairness requirements were not fully met as the employer representatives were not given adequate opportunity to participate in the negotiation process. The Commission noted that while the applicant had engaged with the union, the process did not allow for meaningful employer input, which was a requirement under the legislation. Consequently, the Commission determined that the agreement did not comply with the statutory requirements for approval. The Commission also found that the agreement itself contained provisions that were inconsistent with the objectives of the Fair Work Act, particularly in relation to the scope of the agreement and the rights and obligations of the parties.

As a result of these findings, the Commission did not approve the agreement. The final orders of the Commission included the rejection of the application for approval of the Fire Protection Agreement between Walker Fire Protection Pty Ltd and the CEPU – Plumbing Division (Vic) for the specified period. The Commission further directed that the agreement should be re-negotiated to address the identified procedural and substantive issues.

Walker Fire Protection 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