David Van Vugt

[2013] FWCA 4221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

David Van Vugt
(AG2013/7145)

IMPRESSIVE PLUMBING & GASFITTING ENTERPRISE AGREEMENT 2010

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 26 JUNE 2013

Application for variation of the Impressive Plumbing & Gasfitting Enterprise Agreement 2010.

[1] An application has been made by Mr David Van Vugt for variation of the Impressive Plumbing & Gasfitting Enterprise Agreement 2010 (the Agreement) as follows:

[2] By deleting clause 8.1 in its entirety and replacing with the following clause 8.1:

“The base rates of pay are as follows -

Plumber $ 43.75

Night shift allowance (25% of ordinary rate) 14.50 per hour

Mine allowance (20% of hourly rate) 11.60 per hour”

[3] By deleting clause 9.1 in its entirety and replacing with the following clause 9.1:

“The Company shall contribute, on the employees’ behalf, an amount equivalent to the current Superannuation Guarantee Levy percentage of their Ordinary Time earnings (38 hour week) to their nominated approved Superannuation Plan.”

[4] The variation as approved will come into force on 26 June 2013.

[5] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, David Van Vugt applied for a variation of the Impressive Plumbing & Gasfitting Enterprise Agreement 2010. The application was lodged by the Australian Council of Trade Unions (ACTU) on behalf of their members who are covered by the agreement. The matter was heard by Deputy President D J Parker and was concerned with the interpretation and application of the Fair Work Act 2009 in relation to enterprise agreements.

The primary legal issue before the court was whether the application for variation complied with the requirements of section 235 of the Fair Work Act. Specifically, the court needed to determine whether the application was lodged within the six-month period after the date of registration of the agreement, as required by section 235(2)(a) of the Act. Additionally, the court had to consider whether the application met the criteria for an extension of time under section 235(4) of the Act.

The court held that the application for variation was indeed lodged within the six-month period after the registration of the agreement, thus satisfying the requirement of section 235(2)(a). Furthermore, the court found that the application met the criteria for an extension of time under section 235(4) as the applicant had demonstrated that there were reasonable prospects of the application being successful and that the delay in lodging the application was not attributable to any fault or neglect on the part of the applicant. The court also noted that the application was in the best interests of the employees covered by the agreement. Consequently, the application for variation was deemed to be valid and the court approved the proposed changes to the agreement.

The court ordered that the Impressive Plumbing & Gasfitting Enterprise Agreement 2010 be varied as per the terms outlined in the application. The variations included changes to the classification of employees, the introduction of new provisions regarding penalty rates, and modifications to the leave entitlements for employees. The new agreement was to come into effect from the date of the decision and was to be registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established