D&E Air Conditioning Pty Ltd - [2023] FWCA 332

[2023] FWCA 332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

D&E Air Conditioning Pty Ltd

(AG2023/88)

D&E AIR CONDITIONING PTY LTD & CEPU SOUTH AUSTRALIA, MECHANICAL SERVICES AGREEMENT 2022-2025

Plumbing industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 2 FEBRUARY 2023

Application for approval of the D&E Air Conditioning Pty Ltd & CEPU South Australia, Mechanical Services Agreement 2022-2025

D&E Air Conditioning Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the D&E Air Conditioning Pty Ltd & CEPU South Australia, Mechanical Services Agreement 2022-2025 (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.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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), and based on the declaration provided by the CEPU, I note that the CEPU is covered by the Agreement.

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 and 188 of the Act as are relevant to this application for approval have been met. In addition, I have permitted a variation to the Agreement under s 218A for the following reasons.

Application to vary the Agreement

On 24 January 2023, the Applicant requested, with the support of the CEPU, to have a table, attached to this decision and marked Annexure A, replaced at page 39 of the Agreement titled ‘Unregistered Plumbers’. According to both the Applicant and the CEPU the rates of pay for the ‘travel allowance’ were incorrect, having been based on the ordinary time rate of pay for ‘Registered Plumbers’. To explain further, Appendix A clause 3.4.1 provides that ‘travel allowance’ is paid at ‘three quarters of an hour per day travelling time calculated at ordinary time rates’. The ordinary time rate used for calculating the ‘travel allowance’ for Unregistered Plumbers was actually the applicable ordinary time rate for Registered Plumbers.

The Applicant applied under s 218A of the Act to make the correction to the enterprise agreement, which the parties said had inadvertently arisen.

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error,
defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1);
(a) on its own initiative; or
(b) on application by any of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: D&E Air Conditioning Pty Ltd [2023] FWCA 332
Case: [2023] FWCA 332
Decision Date: 2 FEBRUARY 2023

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a Mechanical Services Agreement 2022-2025 between D&E Air Conditioning Pty Ltd and CEPU South Australia. The agreement aimed to establish terms and conditions for the provision of mechanical services over the specified period. The Commission was tasked with determining whether the agreement met the necessary standards for fair and reasonable terms, given the legislative framework provided by the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed agreement complied with the relevant provisions of the Fair Work Act, particularly in terms of ensuring fair and reasonable terms. This involved assessing whether the agreement adequately protected the rights and interests of both parties and whether it adhered to any applicable industry standards and awards. Additionally, the Commission had to consider if the agreement provided a fair balance between the operational needs of the employer and the welfare of the employees.

In delivering its decision, the Commission carefully examined the provisions of the agreement against the statutory benchmarks for fairness and reasonableness. The Commission noted that the agreement contained provisions that aligned with the relevant industry award and collective agreement, ensuring that employees were not disadvantaged. Furthermore, the Commission found that the terms of the agreement were balanced and provided adequate protections for both the employer and the employees. Given these findings, the Commission approved the agreement, recognising that it met the necessary standards for fair and reasonable terms.

The Fair Work Commission approved the Mechanical Services Agreement 2022-2025 between D&E Air Conditioning Pty Ltd and CEPU South Australia, effective from the date of the decision. The approval was based on the determination that the agreement provided fair and reasonable terms for both parties, in accordance with the requirements of the Fair Work Act.

Orders