Axis Services SA Pty Ltd

[2021] FWCA 5541

[2021] FWCA 5541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Axis Services SA Pty Ltd
(AG2021/6787)

AXIS SEERVICES SA PTY. LTD. ONSITE CONSTRUCTION ENTERPRISE AGREEMENT 2021 - 2025

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 7 SEPTEMBER 2021

Application for approval of the Axis Seervices SA Pty. Ltd. Onsite Construction Enterprise Agreement 2021 - 2025.

[1] An application has been made for approval of an enterprise agreement known as the Axis Seervices SA Pty. Ltd. Onsite Construction Enterprise Agreement 2021 - 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Axis Services SA Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 26 August 2021.

[3] On 31 August 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] As a result of the conference, the Applicant filed with the Commission evidence which satisfied me that the requirements in relation to the distribution of the Notice of Employee Representational Rights (NERR) and the explanation of the terms of the Agreement had been met.

[5] The Applicant has submitted an undertaking in the required form dated 6 September 2021. The undertaking deals with the following topics:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  The rates of pay in the Agreement apply from test time.

•  An agreement between part-time employees and the company stating the hours to be worked, the days that they will be working, and their starting and finishing times may be varied in writing with consent of both parties.

•  Time off in lieu (TOIL) payment will be paid out for the equivalent time worked. On termination, this will be paid out at overtime rates.

[6] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] There are five NES issues that require comment:

•  Clause 6.4.1 of the Agreement provides that when taking carer’s leave, if possible, the employee will give the company notice prior to the absence, and if not possible, the employee will notify the company by telephone of such absence at the first opportunity on the day of absence. This appears to impart a higher obligation on the employee than s.107(2)(a) of the Act, which merely states that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

•  Clause 6.4.3 of the Agreement states that when an employee has exhausted all available personal leave, they are entitled to take up to two days of unpaid leave for the purpose of providing care to an immediate family member who is ill. This appears to be inconsistent with s.97 of the Act, which states than an employee may take carer’s leave when a member of their immediate family or household is affected by a personal illness or injury or an unexpected emergency.

•  Clause 3.5.3 of the Agreement states that when an employee is deemed to have abandoned their employment, they termination shall operate from their last attendance at work or the last day of absence in respect of which consent or notification as provided. This appears to be inconsistent with the notice of termination requirements contained in s.117 of the Act.

•  Clause 3.7.3 of the Agreement provides that the notice of termination provisions will not apply in the case of dismissal for conduct that justifies instant dismissal, including refusal of duty or misconduct and in such cases, wages will be paid up to the time of dismissal. This clause appears to be inconsistent with s.123 of the Act,which provides for summary dismissal for serious misconduct as defined in regulation 1.07 of the Fair Work Regulations 2009.

•  Clause 3.7.1.1 provides that if an employee fails to give notice, the company will 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. Any monies owed by the employee may be deducted from any monies due to the employee including monies due for annual leave and/or pro-rata leave. Clause 6.2.10.2 also allows for deduction from termination monies due to an employee 1/48^th of the amount paid to an employee when they have taken annual leave in advance of the entitlement accruing. Finally, clause 7.3.4 provides for deduction an amount of not more than $450.00 when an employee terminates or discontinues their employment within two weeks of commencing a distance work project and does not promptly return to the employee’s place of engagement. These deductions may be at odds with the payment of NES entitlements on termination.

[9] The Applicant has included a NES precedence clause through its undertaking. This clause states that if there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of that inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[10] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[11] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[12] 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.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 7 September 2025.

COMMISSIONER

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