J E Mechanical & Plumbing Services Pty Ltd Trading As J E Mechanical T/A J E Mechanical

[2024] FWCA 3885

[2024] FWCA 3885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

J E Mechanical & Plumbing Services Pty Ltd Trading As J E Mechanical T/A J E Mechanical

(AG2024/3554)

J. E. MECHANICAL ENTERPRISE AGREEMENT 2023

Plumbing industry
COMMISSIONER MIRABELLA	MELBOURNE, 7 NOVEMBER 2024

Application for approval of the J E Mechanical Enterprise Agreement 2023

[1]       J E Mechanical & Plumbing Services Pty Ltd T/A J E Mechanical Trading (the Employer) has made an application for approval of an enterprise agreement known as the J. E. Mechanical Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 10 July 2023 and the Agreement was made on 19 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

1. The notice of employee representational rights was drafted using an outdated template and was, therefore not in its prescribed form. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A)(b). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

·   Clause 7: Definition of serious misconduct

·   Clause 13.1.1 Redundancy severance pay

·   Clause 24.6.2: Public holiday substitution by majority agreement

1. However, noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement was approved on 7 November 2024 and, in accordance with s.54, will operate from 14 November 2024. The nominal expiry date of the Agreement is 31 October 2027.

COMMISSIONER

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