K and K Electrical Services Pty Ltd

[2023] FWCA 1243

[2023] FWCA 1243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

K and K Electrical Services Pty Ltd

(AG2023/958)

K AND K ELECTRICAL SERVICES PTY LTD ENTERPRISE AGREEMENT 2023-2027

Electrical contracting industry
COMMISSIONER PLATT	ADELAIDE, 2 MAY 2023

Application for approval of the K and K Electrical Services Pty Ltd Enterprise Agreement 2023-2027.

1. An application has been made for approval of an enterprise agreement known as the K and K Electrical Services Pty Ltd Enterprise Agreement 2023-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by K and K Electrical Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 20 April 2023.

1. On 27 April 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The is one matter which concerns the NERR and the voting processes that requires comment. The intended Agreement scope detailed in the NERR provided coverage for ‘trades employees.’ Despite this, the Agreement Scope clause included Administrative employees. In addition, I am advised by the Applicant that, as a result of an error, Administrative employees (of which there were 2) were not invited to participate in the vote.  The Applicant has proposed to amend the Agreement by way of undertakings (detailed below) to remove coverage of Administrative employees as a result.  I am satisfied in the circumstances that there is an appropriate basis to exercise my powers under s.188(2).

1. There is one National Employment Standards (NES) issue that require comment:

·   Compassionate Leave – Clause 7.3.1 does not appear to include requirements for leave relating to stillbirth and miscarriage as provided in s.104 of the Act.

1. Clause 3.5.5 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the NES and where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 27 April 2023. The undertaking deals with the following topics:

·   The Applicant undertakes to provide an entitlement to Employees to be paid compassionate leave if a child is stillborn or there is a miscarriage, pursuant to ss. 104(b) and (c) of the Act.

·   The Applicant undertakes that, in addition to the shift loading provided in Clause 6.4.2 of the Agreement, if an Employee works a shift on a weekday which finished after 6:00 pm and at or before 12:00 am, the Employee is entitled to a 15% shift loading for any time within this period.

·   The Applicant undertakes to delete paragraphs 6 to 10 in Schedule A and the five classifications in Schedule B referring to an administration clerk. Accordingly, the Agreement does not apply to administrative employees.

1. No bargaining representatives were appointed.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. 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 8 May 2027.

COMMISSIONER

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