Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2025] FWCA 340

[2025] FWCA 340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2024/4863)

D&E AIRCONDITIONING PTY LTD AND CEPU - (WA) PLUMBING DIVISION MECHANICAL PLUMBING ENTERPRISE AGREEMENT 2024-2027

Plumbing industry
COMMISSIONER LIM	PERTH, 30 JANUARY 2025

Application for approval of the D&E AIRCONDITIONING PTY LTD and CEPU - (WA) Plumbing division Mechanical Plumbing Enterprise Agreement 2024-2027.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) has made an application for the approval of an enterprise agreement known as the D&E AIRCONDITIONING PTY LTD and CEPU - (WA) Plumbing division Mechanical Plumbing Enterprise Agreement 2024-2027 (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.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. The Employer 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.

1. 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 Employer. No objection was raised.

1. 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.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 24 provides an entitlement to Parental Leave of 52 weeks; however, the term does not appear to provide for an additional 12 months of Parental Leave as provided in s 76 of the Act.

(b)Clause 23.1.1 provides that at least one period of annual leave shall be at least 10 working days. Section 88 of the Act deals with taking paid leave and does not appear to stipulate how annual leave is to be taken, except s 88(1) of the Act provides that paid annual leave may be taken for a period agreed between an employee and his or her employer.

(c)The entitlement to compassionate leave provided by Clause 22.4 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

(d)Clause 29.1 provides that one day’s notice of termination of employment will be given on either side, or one day’s pay will be paid or forfeited. Though this could be considered more beneficial for the Employee, it appears the Agreement provides a lesser notice period than is required by s 117(3) of the Act.

1. However, I am satisfied that under clause 6.4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

1. The model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. The Applicant, 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), and based on the declaration provided by the Applicant, I note that the Applicant is covered by the Agreement.

1. The Agreement was approved on 30 January 2025 and, in accordance with s 54, will operate from 6 February 2025. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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Annexure A