Cooke & Dowsett Rosetta Pty Ltd T/A Cooke & Dowsett Rosetta Plumbing

[2022] FWCA 4483

[2022] FWCA 4483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cooke & Dowsett Rosetta Pty Ltd T/A Cooke & Dowsett Rosetta Plumbing

(AG2022/5008)

Cooke & Dowsett – Rosetta Pty Ltd Northern & Southern Tasmanian Sanitary Plumbing Enterprise Agreement (EBA) 2022 – 2025

Building, metal and civil construction industries
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 21 DECEMBER 2022

Application for approval of the Cooke & Dowsett – Rosetta Pty Ltd Northern & Southern Tasmanian Sanitary Plumbing Enterprise Agreement (EBA) 2022 – 2025

1. Cooke & Dowsett Rosetta Pty Ltd has applied for approval of an enterprise agreement known as the Cooke & Dowsett – Rosetta Pty Ltd Northern & Southern Tasmanian Sanitary Plumbing Enterprise Agreement (EBA) 2022 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Notice of Representational Rights (NERR) distributed to employees was issued on the company’s letterhead. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. An outdated version of the Agreement was lodged with the application which did not contain clause 4.2 (Relationship to the National Employment Standards). On 12 December 2022, the Employer filed the correct version of the Agreement. The Employer submits that numerous versions of the Agreement were exchanged between the parties and a superseded version was mistakenly signed and lodged with the application. The supporting material indicates that the employees voted on the correct version of the Agreement which contains clause 4.2. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.

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. The undertakings are taken to be a term of the Agreement.

1. 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.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 38.5 – Annual Leave in Advance;

·   Clause 45 – Compassionate Leave; and

·   Clause 49 – Severance.

However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2022. The nominal expiry date of the Agreement is 30 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A