Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety

[2021] FWCA 7157

[2021] FWCA 7157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety
(AG2021/8791)

CHUBB FIRE AND SECURITY PTY LTD, SOUTH AUSTRALIA, SPRINKLER FITTERS, COLLECTIVE AGREEMENT, 2021 - 2025

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 16 DECEMBER 2021

Application for approval of the Chubb Fire and Security Pty Ltd, South Australia, Sprinkler Fitters, Collective Agreement, 2021 - 2025

[1] An application has been made for approval of an enterprise agreement known as the Chubb Fire and Security Pty Ltd, South Australia, Sprinkler Fitters, Collective Agreement, 2021 - 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Chubb Fire & Security Pty Ltd T/A Chubb Fire Safety (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 December 2021 and was determined on the papers.

[3] Clause 36.1 states that the company (to the extent permitted by law) may deduct any amounts or debts owed by the employee from salary or other payments due to the employee under the Agreement including any payments due to the employee on termination of their employment, which may include the cost to the company of any company property which the employee fails to return to the company as required on termination of employment. Section 326 of the Act sets out when a term in an enterprise agreement which allows for deductions will have no effect. To the extent that clause 36.1 is inconsistent with s.324 and/or s.326 of the Act, it will have no effect.

[4] There are two National Employment Standards (NES) issues that require comment:

•  Clause 35.3 of the Agreement states that termination of employment by abandonment will operate from the date of the last attendance at work, or the last day of absence where consent was granted by the employer, or the date of the last absence where notification was given to the employer, whichever is the later. Whilst the clause states that the company will comply with s.117 of the Act, it appears that the clause still indicates that the termination by abandonment would be retrospective.

•  As referenced above, clause 36.1 states that the company (to the extent permitted by law) may deduct any amounts or debts owed by the employee from salary or other payments due to the employee under the Agreement, including any payments due to the employee on termination of their employment. This clause will be inconsistent with the NES to the extent that deductions are able to be made from NES entitlements (e.g. annual leave).

[5] Clause 6.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the 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.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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) of the Act I note that the Agreement covers this organisation.

[7] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[8] 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 30 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE514321  PR736826>