Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2022] FWCA 4333
•16 DECEMBER 2022
| [2022] FWCA 4333 |
| 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
(AG2022/4869)
Wormald Australia Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Service Department Enterprise Agreement 2020 –2024
| Plumbing industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 16 DECEMBER 2022 |
Application for approval of the Wormald Australia Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Service Department Enterprise Agreement 2020 - 2024
An application has been made for approval of an enterprise agreement known as the Wormald Australia Pty Ltd and CEPU - Plumbing Division (Vic) Fire Protection Service Department Enterprise Agreement 2020 - 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Agreement is a single enterprise agreement.
The Agreement as lodged contained an error in clause 1 “Title.” On 2 December 2022, the CEPU filed an amended version of the Agreement correcting the error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s 586 of the Act.
Wormald Australia Pty Ltd trading as Wormald (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. The undertakings are taken to be terms of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting paragraph 3 of the undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:
· Clauses 19.11.4 and 21.2(b) of the Agreement provide that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination.
· Clauses 43.5(b) and 43.9.13 of the Agreement provide that where an employee has taken annual leave in advance (in accordance with clause 43.5(a)), and his/her employment is terminated prior to accruing such annual leave balance, the employer may deduct such amounts from whatever remuneration is payable upon termination/monies due to the employee of termination.
· Clause 39 of the Agreement does not provide an entitlement to any other day or part-day declared or prescribed as required by s 115(1)(b) of the Act.
· Clause 39.2 of the Agreement provides that “Subject to the agreement of the employer and a majority of employees employee/s will have the option of replacing the Melbourne Cup Public Holiday with the local race day (e.g., Geelong Cup Day).” This appears to be inconsistent with s 115(3) of the Act which permits substitution on an individual employee basis only.
The 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) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 December 2022. The nominal expiry date of the Agreement is 30 June 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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