Glenn Howard Family Trust T/As Beachside Plumbing Services Pty Ltd T/A Beachside Plumbing

[2023] FWCA 2826

[2023] FWCA 2826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Glenn Howard Family Trust T/As Beachside Plumbing Services Pty Ltd T/A Beachside Plumbing

(AG2023/2807)

BEACHSIDE PLUMBING SERVICES PTY LTD ENTERPRISE AGREEMENT 2023 - 2027

Plumbing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 SEPTEMBER 2023

Application for approval of the Beachside Plumbing Services Pty Ltd Enterprise Agreement 2023 - 2027

1. An application has been made for approval of an enterprise agreement known as the Beachside Plumbing Services Pty Ltd Enterprise Agreement 2023 - 2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Glenn Howard Family Trust T/As Beachside Plumbing Services Pty Ltd T/A Beachside Plumbing. The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 10 July 2023 and the Agreement was made on 3 August 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in 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 of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The NERR is addressed to employees and includes the date it was issued and as such is not in the prescribed form required by s. 174(1A) of the Act. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. Correspondence was sent to the Employer by my Chambers on 25 August 2023 raising a number of concerns including that the notice to vote issued to employees and lodged with the Commission does not provide the place or method of the vote. The Employer responded on 31 August 2023 and provided that employees were not advised of the specific voting method as the standard method of voting by a show of hands at a meeting was used and was familiar to employees. The Employer further advised that in conducting the vote to consider approval of the Agreement, the owner of the business after opening the meeting withdrew to allow the show of hands vote to be conducted. I note that the vote in support of the Agreement was unanimously in favour. Having regard to the Statement of Principles on Genuine Agreement and in particular clauses 15 and 16, I am satisfied in the circumstances that employees were provided with a reasonable opportunity to vote on the Agreement in a free and informed manner.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2023. The nominal expiry date of the Agreement is 4 September 2027.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

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