Engie Fire Protection Pty Ltd

[2022] FWCA 1343

[2022] FWCA 1343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Engie Fire Protection Pty Ltd

(AG2022/1089)

ENGIE Fire Protection Pty Ltd SA Electrical Enterprise Agreement 2021 - 2025

Electrical contracting industry
COMMISSIONER PLATT	ADELAIDE, 19 APRIL 2022

Application for the approval of ENGIE Fire Protection Pty Ltd SA Electrical Enterprise Agreement 2021 - 2025

1. An application has been made for approval of an enterprise agreement known as the ENGIE Fire Protection Pty Ltd SA Electrical Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Engie Fire Protection Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 14 April 2022 and was determined on the papers.

1. The Applicant has submitted an undertaking in the required form dated 19 April 2022. The undertaking deals with the following topics:

·   When clause 6.1.13.2 of the Agreement, which allows for deductions, is applied in a manner that is inconsistent with s.324 of the Act, the clause will have no effect.

·   Despite clause 10.1(4) of the Agreement, the employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

·   The Applicant has inserted a National Employment Standards (NES) precedence clause.

1. 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 did not oppose the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. There are four NES issues that require comment:

·   The Agreement appears to be silent on how parental leave shall be provided and paid for. This appears inconsistent with s.70 of the Act which provides that an employee is entitled to 12 months unpaid parental leave.

·   Clause 6.1.1 of the Agreement states that a period of 4 weeks leave will be accrued annually. This appears to suggest that annual leave does not accrue progressively in accordance with s.87(2) of the Act and that employees are only entitled to 4 weeks of annual leave for every year worked.

·   Clause 6.4 of the Agreement provides for compassionate leave but does not extend the entitlement to when the employee, their spouse, or their de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s.104(1)(c) of the Act.

·   The Agreement appears to be silent on how family and domestic violence leave shall be provided and paid for. This appears inconsistent with s.106A of the Act, which provides that an employee is entitled to 5 days of unpaid family and domestic violence in a 12 month period.

1. The Applicant has provided an effective NES precedence undertaking, 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. To the extent that the Agreement is silent on NES entitlements, the relevant provisions in the NES will apply. 

1. 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.

1. 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.

1. 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 1 July 2025.

COMMISSIONER

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