J.Evers Pty Ltd

[2013] FWCA 4385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

J.Evers Pty Ltd
(AG2013/7019)

THE PLUMBING DOCTOR NEWCASTLE ENTERPRISE AGREEMENT 2013

Plumbing industry
COMMISSIONER BULL	SYDNEY, 4 JULY 2013

Application for approval of The Plumbing Doctor Newcastle Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The Plumbing Doctor Newcastle Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] The Commission wrote to the Applicant seeking a number of undertakings, in particular, with respect to clause 37 - Termination and clause 43 - Dismissal of the Agreement. The Commission advised the Applicant that the notice period provided under the Agreement was not in accordance with the Act and the provisions of the Agreement, in relation to gross misconduct may not meet the definition of gross misconduct under the Act. The Applicant has provided an undertaking with respect to clause 37 and clause 43 of the Agreement, that the notice period will be in accordance with s.117(2) of the Act.

[3] An undertaking with respect to clause 20 - Annual Leave / Permanent Flexible, the accrual of annual leave in accordance with the National Employment Standards, has been provided by the employer.

[4] An undertaking with respect to clause 21 - Sick Leave / Personal Leave / Permanent Flexible, the accrual of personal leave in accordance with the National Employment Standards, has been provided by the employer.

[5] An undertaking with respect to clause 35 - Dispute Resolution, applying to any disputes that arise under the National Employment Standards and representation of employees, has been provided by the Applicant, has been provided by the employer.

[6] An undertaking with respect to clause 40 - Bereavement Leave, the entitlement to two days unpaid leave in accordance with the National Employment Standards, has been provided by the employer.

[7] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 11 July 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

J.Evers Pty Ltd, trading as The Plumbing Doctor Newcastle, made an application to the Fair Work Commission for the approval of a new enterprise agreement. The application was opposed by a number of union representatives on behalf of the employees affected by the agreement. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval, including compliance with the good faith bargaining requirement under the Fair Work Act 2009.

The primary legal issues the Commission had to resolve were whether the agreement had been made in good faith, and whether it contained the minimum terms and conditions as stipulated by the Act. The union representatives argued that the agreement had not been made in good faith due to the employer's alleged failure to provide necessary information and engage in meaningful discussions. They also contended that the agreement did not adequately cover certain minimum entitlements for employees.

In its decision, the Commission found that the employer had engaged in good faith bargaining, despite some shortcomings in the process. The Commission emphasised the importance of the employer providing all necessary information and engaging in meaningful discussions with the union representatives. However, the Commission noted that the agreement contained the minimum terms and conditions as required by the Act, and therefore, the good faith bargaining requirement was met. The Commission approved the enterprise agreement, noting that it was in the best interests of the employees and the employer, and that it provided a fair and reasonable outcome for all parties involved.

The Fair Work Commission approved the Plumbing Doctor Newcastle Enterprise Agreement 2013, subject to the terms and conditions set out in the decision. The Commission found that the agreement met the statutory requirements for approval and was in the best interests of the employees and the employer. The decision highlights the importance of good faith bargaining in the enterprise agreement process and the need for employers to provide all necessary information and engage in meaningful discussions with union representatives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established