Ara Fire Protection Services Pty Ltd Trading AS Ara Fire
[2025] FWCA 2978
•3 SEPTEMBER 2025
| [2025] FWCA 2978 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 185—Enterprise agreement
Ara Fire Protection Services Pty Ltd Trading AS Ara Fire
(AG2025/2644)
ARA FIRE PROTECTION SERVICES PTY LTD (WA), 14 KENHELM STREET, BALCATTA, WA 6021 AND THE COMMUNICATIONS, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA (CEPU) PLUMBING DIVISION (WA BRANCH) “ARA FIRE PROTECTION SUPRESSION ENTERPRISE AGREEMENT WA 2025 – 2028”
| Fire fighting services | |
| COMMISSIONER LIM | PERTH, 3 SEPTEMBER 2025 |
Application for approval of the Ara Fire Protection Services Pty Ltd (WA), 14 Kenhelm Street, Balcatta, WA 6021 and the Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) Plumbing Division (WA Branch) “ARA Fire Protection Suppression Enterprise Agreement (WA) 2025 – 2028”
Ara Fire Protection Services Pty Ltd Trading AS Ara Fire (the Applicant) has made an application for the approval of an enterprise agreement known as the Ara Fire Protection Services Pty Ltd (WA), 14 Kenhelm Street, Balcatta, WA 6021 and the Communications, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) Plumbing Division (WA Branch) “ARA Fire Protection Suppression Enterprise Agreement (WA) 2025 – 2028” (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
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.
In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):
(a)Clause 7 of the Agreement provides that a full-time employee’s weekly hours are equal to or over 38 hours. This appears inconsistent with s 62 of the Act which states that an employer must not request or require an employee to work more than 38 hours in a week unless the additional hours are reasonable.
(b)Clause 16 of the Agreement appears to provide that employees are entitled to up to 20 days of annual leave per year, inconsistent with s 87 of the Act which specifies annual leave in weeks.
(c)Clause 16 of the Agreement provides that where an employee’s annual leave accrual ‘exceeds 6 weeks (240 hours) the employer can instruct at their discretion an employee to take leave. This may be inconsistent with s 94 of the National Employment Standards which states that an employer may reasonably require an employee to take paid annual leave where the employee has accrued an excessive amount of paid annual leave, however the period of leave to be taken and time in which it is to be taken must be a period agreed by the employee and employer.
(d)Clause 18 of the Agreement provides that where personal leave is taken ‘the Employee is required to notify their supervisor in person (by phone, SMS messaging will not be acceptable) as soon as reasonably possible prior to their commencement of work (at least½ hour) indicating the reason, the expected duration and in the case of carers leave the person they are caring for. Failure to notify the employer will result in the absence to be considered as leave without pay and a breach of Employer policies. This appears to provide a more stringent notice requirement than permitted by s 107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
(e)Clause 19.1 of the Agreement provides that where an employee takes compassionate leave ‘the Employee is required to notify their supervisor in person (by phone, SMS messaging not be acceptable) as soon as reasonably possible prior to their commencement of work (at least ½ hour) indicating the reason, the person affected and expected duration’. This appears to provide a more stringent notice requirement than permitted by s 107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
(f)Clause 23.1 of the Agreement provides that ‘if an employee fails to give the required notice the employer shall have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice. Additionally, clause 23.3 of the Agreement states that ‘upon employment being terminated employees shall immediately return all employer property in their possession to the employer. Failing to do so the employer may deduct from the final monies owing to the employee for an amount equivalent to the cost of replacement of non-returned property’. We note that these clauses do not appear to limit the source of monies which may be deducted or withheld. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.
(g)Clause 20 of the Agreement appears to provide for ‘unpaid leave’ types and lists ‘domestic violence’ under this clause. We note that clause 20.1 states that all employees (including Part Time and Casual employees) are entitled to family and domestic leave accordance with the NES, however it appears unclear whether this leave is intended to be paid. Where this leave is unpaid it will not be compliant with s 106A of the Act.
(h)Clause 7 of the Agreement provides that a full-time employee’s weekly hours are equal to or over 38 hours. This appears inconsistent with s 62 of the Act which states that an employer must not request or require an employee to work more than 38 hours in a week unless the additional hours are reasonable.
However, I am satisfied that with the undertakings provided, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
Clause 34 of the Agreement contains a consultation term that does not provide for consultation in relation to a change to regular rosters and ordinary hours of work as required by s 205(1A) of the Act. Pursuant to s 205(2) of the Act, the model consultation term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.
The Communicating, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division, Western Australian Branch (128V) (CEPU) (the organisation), being a bargaining representative for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisation is covered by the Agreement.
The Agreement was approved on 3 September 2025 and, in accordance with s 54, will operate from 10 September 2025. The nominal expiry date of the Agreement is 1 July 2028.
COMMISSIONER
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Annexure A
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