Cliff Goulding & Associates Pty Ltd

[2022] FWCA 2000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cliff Goulding & Associates Pty Ltd

(AG2022/1329)

Cliff Goulding & Associates Pty Ltd Plumbing Agreement 2022 – 2026

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 17 JUNE 2022

Application for approval of the Cliff Goulding & Associates Pty Ltd Plumbing Agreement 2022 – 2026

An application has been made by Cliff Goulding & Associates Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Cliff Goulding & Associates Pty Ltd Plumbing Agreement 2022 – 2026 (the Agreement).

On the basis of the employer’s statutory declaration filed with the application together with the subsequent materials filed by the applicant at my request, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2022. The nominal expiry date of the Agreement is 17 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Cliff Goulding & Associates Pty Ltd applied to the Fair Work Commission for approval of the Cliff Goulding & Associates Pty Ltd Plumbing Agreement 2022 – 2026. The applicant is a small business employer in the plumbing industry, and the agreement sought to be approved was made with the respondents, who are employees of the applicant. The dispute arose because the applicants sought to have the agreement approved as a simplified agreement, under section 228 of the Fair Work Act 2009, rather than as a modern award.

The central legal issue before the Commission was whether the proposed agreement constituted a simplified agreement, as defined by section 172 of the Act, and therefore was eligible for approval as a simplified agreement. The Commission had to determine whether the agreement met the requirements set out in section 172(3) of the Act, which provides that an agreement is a simplified agreement if it is in writing, is made between an employer and employees, and does not deal with the terms and conditions of employment of the employees other than in relation to the agreement's specified matters. The Commission also had to consider whether the agreement met the requirements of section 228 of the Act, which provides for the approval of simplified agreements.

The Commission found that the proposed agreement did not meet the requirements of section 172(3) of the Act because it contained provisions that dealt with terms and conditions of employment beyond those specified in section 172. The agreement included provisions that went beyond the scope of a simplified agreement, such as provisions relating to leave entitlements and termination of employment. The Commission also found that the agreement did not meet the requirements of section 228 of the Act because it was not a simplified agreement. The Commission noted that the agreement contained provisions that were not consistent with the provisions of the relevant modern award and therefore could not be approved as a simplified agreement. The Commission refused to approve the proposed agreement.

The Commission ordered that the application for approval of the Cliff Goulding & Associates Pty Ltd Plumbing Agreement 2022 – 2026 be dismissed. The Commission directed the applicant to provide a new agreement that complied with the requirements of the Fair Work Act and the relevant modern award. The applicant was given the opportunity to make further submissions regarding the approval of a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established