Highlight Investments Pty Ltd as trustee for Highlight Investments Trust T/A Ceiling and Wall Contractors

[2019] FWCA 7244

[2019] FWCA 7244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Highlight Investments Pty Ltd as trustee for Highlight Investments Trust T/A Ceiling and Wall Contractors
(AG2019/3859)

CEILING AND WALL CONTRACTORS ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 6 NOVEMBER 2019

Application for approval of the Ceiling and Wall Contractors Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ceiling and Wall Contractors Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Highlight Investments Pty Ltd as trustee for Highlight Investments Trust T/A Ceiling and Wall Contractors. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 17 October 2019.

[3] On 21 October 2019, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a form F18 which identified that it did not support approval of the Agreement.

[4] A telephone conference was subsequently held on 25 October 2019 where the CFMMEU was given the opportunity to state its concerns. Following the conference, I issued Directions requiring the parties to confer and notify my Chambers by no later than 1 November 2019 whether or not any objection to the approval of the Agreement remained.

[5] The CFMMEU subsequently notified my Chambers that it no longer pressed any objections to the approval of the Agreement.

[6] Upon reviewing the proposed Agreement, the following issues were identified:

•  Clause 12.4 of the Agreement requires employees to give at least 10 weeks’ notice of an intention to take parental leave, which is a more onerous requirement than is contemplated by ss. 74(2)(a)(ii) and (2)(b) of the Act.

•  Clause 15.5 of the Agreement entitles the employer to recover monies owing for any company property not returned by an employee through making deductions from an employee’s termination pay.

[7] Issue 1 above can be regarded as a deviation from the National Employment Standards (NES), but the operation of clause 1.4.6 of the Agreement, which contains an NES precedence clause, resolves any inconsistency and ensures the proper notice periods for seeking parental leave will apply.

[8] Issue 2 concerns a clause that may breach s.324 of the Act that sets out when deductions are allowed to be made by an employer. The deduction method described in this clause 15.5 may be contrary to s.324 and may not be enforceable.

[9] The Construction, Forestry, Maritime, Mining and Energy Union, 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.

[10] 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.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 5 November 2023.

COMMISSIONER

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