Hydrilla Pty Ltd

[2021] FWCA 2766

[2021] FWCA 2766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hydrilla Pty Ltd
(AG2021/5028)

HYDRILLA PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 14 MAY 2021

Application for approval of the Hydrilla Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Hydrilla Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hydrilla Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 12 May 2021 and has been determined on the papers.

[3] It is noted that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) notified the Commission on 12 May 2021 that they opposed approval of the Agreement and wanted to be heard on the matter.

[4] My Associate contacted the CEPU and requested that they provide the basis of their intervention and opposition to approval to my Chambers by 4.00pm, 14 May 2021.

[5] In response the CEPU advised that the proposed Agreement covers Plumbers. It does not appear that the CEPU is a bargaining representative. I have determined to receive their submission pursuant to s.590 of the Act so as to inform myself.

[6] As to the basis for opposing the approval of the Agreement, the CEPU advised that the work performed by Plumbers does not fall within the coverage of the Building and Construction General On-Site Award 2020 and accordingly the Plumbing and Fire Sprinklers Award 2020 must be considered for the better off overall test (BOOT). The proposed Agreement has been assessed against both the Building and Construction General On-Site Award 2020 and the Plumbing and Fire Sprinklers Award 2020.

[7] The CEPU appear to assert that the Plumbing and Fire Sprinklers Award 2020 should have been given to the employees as part of the explanation process. I note that the proposed Agreement is not read in conjunction with that Award and thus there is no reason why that Award must be supplied.

[8] I note that Clause 12.1.6 of the agreement may be inconsistent with s.326 of the Act and if so, will not have effect.

[9] I note that provisions in the Agreement concerning casual conversion, withholding of monies on termination, and redundancy appear inconsistent with the National Employment Standards (NES) but are remedied a result of the NES precedence clause at Clause 1.4.4 of the Agreement.

[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 after the date of approval of the Agreement. The nominal expiry date is 14 May 2025.

COMMISSIONER

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