Cushman & Wakefield Facilities Services (Aust) Pty Ltd Summary

[2021] FWCA 6850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cushman & Wakefield Facilities Services (Aust) Pty Ltd
(AG2021/8393)

CUSHMAN AND WAKEFIELD FACILITIES SERVICES PLUMBING ONSITE CONSTRUCTION ENTERPRISE AGREEMENT 2021

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 25 NOVEMBER 2021

Application for approval of the Cushman and Wakefield Facilities Services Plumbing Onsite Construction Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Cushman and Wakefield Facilities Services Plumbing Onsite Construction Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cushman & Wakefield Facilities Services (Aust) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 November 2021.

[3] On 25 November 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] During the conference, the Applicant confirmed that the amount of the Consolidated Disability Allowance referred to in Clause 4.1.4 of the Agreement is $3.00 per hour.

[5] There are two National Employment Standards (NES) issues that require comment:

• Clause 6.2.1 of the Agreement expresses annual leave in terms of days rather than in weeks as per s.87 of the Act.

• Clauses 6.3.10 and 6.3.12 of the Agreement provides that sick leave will be credited at a rate of one day at the beginning of each calendar month for the first 10 months of employment. This appears to be inconsistent with s.96 of the Act, which states that an employee’s entitlement to personal leave accrues progressively during a year of service.

[6] Clause 1.7.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[7] The Applicant has submitted an undertaking in the required form dated 24 November 2021. The undertaking deals with the following topic:

• The rates of pay as outlined in 4.1.1.1 of the Agreement have been increased to ensure that the Agreement passes the better off overall test (BOOT). The updated rates can be viewed in the undertaking, which has been attached to the Agreement.

[8] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative indicated during the telephone conference that they supported the undertaking.

[9] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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) of the Act I note that the Agreement covers this organisation.

[10] 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.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 8 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in the proceedings were Cushman & Wakefield Facilities Services (Aust) Pty Ltd and its employees represented by a union. The dispute was over the approval of the proposed Plumbing Onsite Construction Enterprise Agreement 2021. The matter was heard in the Fair Work Commission. The key legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009 and if it provided for minimum entitlements as specified by the Act. Specifically, the Commission had to determine if the agreement complied with the procedural requirements and if it met the criteria for being a low paid industry agreement.

The Fair Work Commission carefully examined the proposed agreement to ensure it adhered to the provisions of the Fair Work Act 2009. The Commission noted that the agreement had been made following the prescribed process, including consultation and good faith bargaining. Furthermore, the agreement provided for minimum entitlements as required by the Act and was deemed to be a low paid industry agreement. The Commission was satisfied that the agreement was fair and reasonable, taking into account the nature of the industry and the bargaining context. Consequently, the Commission approved the Plumbing Onsite Construction Enterprise Agreement 2021.

In summary, the Fair Work Commission approved the proposed Plumbing Onsite Construction Enterprise Agreement 2021. The Commission found that the agreement met the legal requirements under the Fair Work Act 2009 and provided for the necessary minimum entitlements. The Commission's decision was based on the evidence presented and the conclusion that the agreement was fair and reasonable, taking into account the industry and bargaining context. The final order was the approval of the agreement, which will now be in effect for the relevant employees and employers.

Cushman & Wakefield Facilities Services (Aust) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established