Amdel Services Pty Ltd
[2025] FWCA 881
•11 MARCH 2025
| [2025] FWCA 881 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Amdel Services Pty Ltd
(AG2025/441)
AMDEL SERVICES PTY LTD FIRE ALARMS INSTALLATION ENTERPRISE AGREEMENT 2025
| Electrical contracting industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 11 MARCH 2025 |
Application for approval of the AMDEL SERVICES PTY LTD Fire Alarms Installation Enterprise Agreement 2025
Introduction
Amdel Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AMDEL SERVICES PTY LTD Fire Alarms Installation Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Electrical, Electronic and Communications Contracting Award 2020 (the Award).
Sufficient Interest and Sufficiently Representative
The F17 Declaration submitted by the Employer did not include information about whether employees have a sufficient interest in the terms of the agreement or were sufficiently representative of the employees it intends to cover. Consequently, the Commission was unable to make a determination on these matters.
The Employer subsequently provided an amended F17 Declaration which included information relevant to the issue of sufficient interest and sufficiently representative. Based on those submissions I am satisfied that the employees requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
Model Flexibility Term
The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. 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. A copy of the model flexibility term can be found in Schedule F of the Agreement.
Dispute Resolution Term
The Agreement does not contain all of the requisite dispute resolution terms, as required by s. 186(6) of the Act. The model dispute term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model dispute term can be found in Schedule G of the Agreement.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Schedule H.
Personal Leave
Clause 14(b) of the Agreement states that full-time employment will accrue personal leave of 8 days per annum for illness, injury and carers leave. This is inconsistent with s.96 of the Act where for each year of service with an employer, an employee is entitled to 10 days of paid personal/carer’s leave. Further, the clause at 14(b) in the Agreement states that an employee will notify a relevant company representative prior to the commencement time of the day’s work of his/her inability to attend for duty whereas s.107(2)(a) of the Act provides an employee must notify the employer as soon as reasonably practicable (which may be after the leave has started).
The Employer provided an undertaking to address this issue.
Carer’s Leave
Clause 14(c) of the Agreement states where an employee has responsibilities in relation to either members of their immediate family, or members of their household who need his/her care, may use personal leave to provide care and support for them when they are ill or injured. The clause also states that carers leave is limited to 8 days in any one year. This appears inconsistent with s.102 of the Act which provides that an employee is entitled to 2 days of unpaid carer’s leave (after the 10 days of personal/carer’s leave has been exhausted) for each occasion when a member of the employee’s immediate family, or a member of the employee’s household, requires care of support because of a personal illness or injury affecting the member of an unexpected emergency affecting the member.
The Employer provided an undertaking to address this issue.
Annual Leave
Clause 14(a) of the Agreement appears to provide requirements about notice of taking annual leave, and length of annual leave to be taken. These appear to be more onerous than the National Employment Standards (NES).
I note that in accordance with the NES precedence term in Clause 41 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Compassionate Leave
Clause 14(e) provides for compassionate leave. However, it appears to omit the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child. This may be more restrictive than s.104(1)(b)(c) of the Act. Further, the clause provides that close family member means ‘an employee’s spouse or partner, a child (including an adult, adopted, or stepchild), parent, parent-in-law, grandparents, grandchild or sibling of the employee’. This clause may provide a more restrictive definition of immediate family than s.12 of the Act, which states that immediate family means a spouse, de-facto partner, child, parent, grandparent, grandchild or sibling of the employee or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
I note that in accordance with the NES precedence term in Clause 41 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Termination – Withholding Monies
Clause 19(e) states that on termination of employment, any monies owing to the employer may be withheld from any termination payment, including accruals owed to the employee. As the Agreement provides that entitlements under the NES can be deducted, this provision may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
Clause 24(f) also provides that if an employee fails to give the requisite notice the Company shall have the right to withhold wages and/or entitlements due to the employee on termination. These clauses do not limit the source of monies deducted, and therefore may restrict an employee’s entitlement to payment of NES entitlements upon the termination of employment. In contract, clause 30.1(d) of the Award only permits the employer to deduct one week’s wages rather than NES entitlements.
The Employer provided an undertaking to address this issue.
Modern Award Incorporation
Clause 5(b) states that the Agreement shall operate to the exclusion of any and all awards and supersedes any previous arrangements or agreements. The clause further states that ‘for the purposes of s.354 of the Workplace Relations Act, this Agreement excludes the operation of the following protected award provisions…’. While it appears that the aligned Modern Award is not incorporated, reference to the Workplace Relations Act is outdated.
The Employer provided an undertaking to address this issue.
Section 190 Undertakings
The Employer provided written undertakings. A copy of the undertakings is attached in Schedule E. 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. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
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.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2025. The nominal expiry date of the Agreement is 30 May 2027.
DEPUTY PRESIDENT
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