Everett Smith & Co Pty Ltd

[2024] FWCA 3136

[2024] FWCA 3136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Everett Smith & Co Pty Ltd

(AG2024/3017)

EVERETT SMITH & CO PTY LTD COMMERCIAL SECTOR ENTERPRISE AGREEMENT 2024

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 29 AUGUST 2024

Application for approval of the Everett Smith & Co Pty Ltd Commercial Sector Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Everett Smith & Co Pty Ltd Commercial Sector Enterprise Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Everett Smith & Co Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) issued by the Employer was prepared using a version of the NERR that applied prior to the 6 June 2023 legislative reforms. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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 requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. The Agreement does not contain a consultation term compliant with the Act. Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Noting clause 6.4 of the Agreement, I am satisfied that to the extent that the Agreement is less favourable than the National Employment Standards (NES), the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

·   Abandonment: Clause 43.20 of the Agreement does not specifically provide that employees deemed to have abandoned their employment in accordance with this clause will be afforded their minimum notice of termination entitlement in s 117(3) of the Act. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided for in s 117.

·   Compassionate leave: Clause 29 of the Agreement provides for compassionate leave, however it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in those circumstances.

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) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 5 September 2024. The nominal expiry date of the Agreement is 12 May 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A