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

[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.

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.

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.

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.

The notice of employee representational rights was drafted using an outdated template and was, therefore not in its prescribed form.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.

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

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by J E Mechanical & Plumbing Services Pty Ltd, trading under the name J E Mechanical, for the approval of the J E Mechanical Enterprise Agreement 2023. The dispute arose within the Fair Work Commission, where the company sought to have the agreement recognised and enforced. The case was heard in the Federal Court of Australia, where the court was required to assess whether the agreement met the statutory requirements under the Fair Work Act 2009.

The central legal issue before the court was whether the Enterprise Agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the court needed to determine if the agreement was genuinely bargained between the employer and employees, if it contained all the prescribed minimum terms and conditions, and if it was consistent with the broader public policy objectives of the Act. The court also considered if there was sufficient evidence of genuine agreement and if the agreement had been properly certified by the Fair Work Commission.

The court's analysis focused on the procedural fairness of the bargaining process and the contents of the agreement. It examined the evidence provided regarding the negotiation process and the fairness of the terms. The court found that the agreement was genuinely negotiated and that it contained all the necessary minimum terms. It also concluded that the agreement was consistent with the public policy objectives of the Fair Work Act. Based on these findings, the court approved the Enterprise Agreement, recognising it as a lawful and enforceable document.

The court's decision resulted in the formal approval of the J E Mechanical Enterprise Agreement 2023, thereby allowing it to be enforced between the parties. This outcome provided clarity and legal certainty regarding the terms of employment for the relevant employees, ensuring that the agreement would be upheld in accordance with the provisions of the Fair Work Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established