Cooke & Dowsett Pty Ltd

[2016] FWCA 8046

[2016] FWCA 8046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Cooke & Dowsett Pty Ltd
(AG2016/6778)

COOKE AND DOWSETT PTY LTD AND CEPU - PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2015 - 2019

Plumbing industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 NOVEMBER 2016

Application for variation of the Cooke and Dowsett Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2015 - 2019.

[1] An application has been made for approval of a variation to the Cooke and Dowsett Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2015 - 2019¹ (the Agreement). The application was made by Cooke & Dowsett Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks approval to vary clauses 13, 14, 20, 24, 30 and 46 and Appendices D and H of the Agreement as follows:

1 By deleting the Preamble / Introduction in Clause 13 and inserting the following:-

13. PROCEDURE FOR DEALING WITH SAFETY ISSUES OR INCIDENTS

This procedure shall be followed in good faith and without unreasonable delay. If an issue is not settled by observance of this procedure, or if the procedure is disregarded by either party, the matter may be submitted to the Victorian Building Industry Disputes Panel (VBIDP) for resolution (which includes conciliation / mediation and, if required, arbitration). Nothing in this Agreement shall take precedence over the OHS Act. Failure to follow the procedure, by either party, entitles the other party to invoke the Disputes Resolution Procedure in Clause 14 of the Agreement.

2 By deleting the Preamble / Introduction in Clause 14 and inserting the following:-

14. DISPUTES RESOLUTION PROCEDURE

This Agreement recognises the union as a legitimate representative of the employees covered by this Agreement. However, employees are free to be represented, or not represented, by the union.

3 By deleting Clause 14.3 and inserting the following:-

14.3 Any outcome determined by the VBIDP or the FWC pursuant to this procedure will not be inconsistent with FW Act or the Fair Work (Building Industry) Act 2012 or the Building Code 2013.

4 By deleting Clauses 20.6, 20.7, 20.8 and 20.9 and inserting the following as Clauses 20.6 and 20.7:-

20.6 All subcontract firms would be engaged according to the following terms:-

20.6.1 the subcontract firm will have its own safe work method statements and OHS Plans; and

20.6.2 the subcontract firm will have all appropriate licences and hold current public liability and worker’s compensation insurances; and

20.6.3 builders will be notified that the subcontract firm has been engaged and all employees of the subcontract firm will be inducted under their company name; and

20.6.4 all employees employed by the subcontract firm will hold all appropriate registrations and or licences to carry out work they are performing; and

20.6.5 all employees of the subcontract firm will obey by all Site requirements.

20.7 In the event of a dispute about whether consultation has occurred under this clause, the matter will be dealt with in accordance with Clause 14 - Dispute Resolution Procedure.

5 By renumbering Clauses 20.10, 20.11, 20.12, 20.13 and 20.14 to 20.8, 20.9, 20.10, 20.11 and 20.12 respectively.

6 By deleting Clause 24.3 and inserting the following:-

24.3 The employer must be a participating employer in the Construction and Building Unions Superannuation Scheme (Cbus) and subject to an employee’s right to choose a superannuation fund under Section 32F of the SGAA, all employees covered by the Agreement (including Apprentices) of the employer shall be enrolled as members in Cbus and be entitled to superannuation benefits in accordance with the terms of the trust deed for Cbus.

7 By deleting Clause 24.11.1(b) and inserting the following:-

24.11.1(b) unless contrary to any applicable law, the employer must upon request by an employee or his / her employee representative or other representative, allow that employee or or his / her employee representative or other representative to during normal business hours:-

8 By deleting Clause 24.11.1(d)(i) and inserting the following manner:-

24.11.1(d)(i) any one or more of the affected employees, or his/her employee representative, or other representative or the Applicable Trustee shall have standing to enforce the employer’s superannuation obligations under this agreement, and in the case of the Applicable Trustee, the Applicable Trust Deed including to bring legal proceedings against the employer; and

9 By deleting Clause 24.13 and inserting the following:-

24.13 The obligations provided in Clause 24.11.1(b), are conditional upon the employee representative or other representative, complying with Part 3 – 4 – Right of Entry under the FW Act.

10 By deleting Clause 30.1 and inserting the following:-

30 Application of Site Agreements

30.1 Where a Project Agreement is entered into by the employer and is complaint with the Code and has been certified by FWC, registered, lodged or otherwise approved under a designated building law (as defined by the Fair Work (Building Industry) Act 2012)the following shall apply:-

11 By deleting the Preamble / Introduction in Clause 46 and inserting the following:-

46 Employee Representatives

This clause outlines the rights for employee representatives when assisting employees. For clarity, each employee has the right to determine whether they wish to be represented by a union delegate, employee representative, a representative of their choosing, or, not at all.

12 By deleting Appendix AD.11.10 and inserting the following:-

AD.11.10 In all cases where the parties fail to reach agreement on the Project Site Allowance to apply to a particular site or project, then the matter will be dealt with in accordance with Clause 14 - Disputes Resolution Procedure.

13 By deleting Appendix AD.11.11 and inserting the following:-

AD.11.11 In determining the rate, VBIDP shall have regard to this Appendix and shall not deviate from these Guidelines unless there are special and exceptional circumstances. Special and exceptional circumstances may include working on projects where disabilities not comprehended in the Site Allowance procedure described herein exist. This may include where predominately contract metal trades construction/maintenance work is being carried out. Where the procedures prescribed by this Clause are being followed, work shall continue normally. In the event of employees taking industrial action in pursuance of a claim the date of operation of the Project Site Allowance shall not commence before the date on which the employees cease industrial action.

14 By deleting Appendix AD.11.12 and inserting the following:-

AD.11.12 Any Site Allowance that is determined in accordance with Clause AD11.11 shall be incorporated into the Agreement in accordance with the FW Act.

15 By deleting the Preamble / Introduction in Appendix H and inserting the following:-

Appendix H – Compliance with this Agreement

Complaints, queries and concerns regarding entitlements paid in relation to the Agreement shall be raised and resolved in accordance with Clause 14 – Disputes Resolution Procedure.

This clause outlines the rights for employee representatives when assisting employees. For clarity, each employee has the right to determine whether they wish to be represented by a union delegate, employee representative, another representative, or, not at all.

16 By deleting Appendix AH.3, AH.4.1 and AH.4.2 and inserting the following:-

AH.3 The audit process may be initiated by the employer themselves or by the employee through his / her employee representative, if one is appointed.

Process - Step 1

AH.4.1 The employee, or his / her employee representative, shall be provided access to time and wages records in accordance with all legal requirements including, but not limited to, the Privacy Act 1988. The obligations provided in this clause are conditional upon the representative (however termed) complying with Part 3 – 4 – Right of Entry under the FW Act.

Step 2

AH.4.2 If the employee or his / her employee representative suspects that there has been a breach of the Agreement and requests the production of a Certificate of Compliance (Certificate), the employer must provide such Certificate.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), a bargaining representative for the Agreement covered by the Agreement, is not opposed to the application.

[4] On the basis of the material before me, I am satisfied that each of the requirements of sections 210 and 211 of the Act, as relevant to this application for approval, have been met.

[5] The variation is approved and a consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with section 216 of the Act, the variation operates from 7 November 2016.

DEPUTY PRESIDENT

1 AE419943.

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