Kenneth Andrew Smith T/A A W Edwards Pty Ltd

[2022] FWCA 2046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kenneth Andrew Smith T/A A W Edwards Pty Ltd

(AG2022/1692)

A W Edwards Pty Ltd Construction Plumbers Enterprise Agreement 2022 – 2026

Plumbing industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 22 JUNE 2022

Application for approval of the A W Edwards Pty Ltd Maintenance Plumbers Enterprise Agreement 2022 – 2026

An application has been made for approval of an enterprise agreement known as the A W Edwards Pty Ltd Maintenance Plumbers Enterprise Agreement 2022 – 2026 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Act). It has been made by Kenneth Andrew Smith T/A A W Edwards Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Employees were notified of the time, place and method of vote via notice on 9 May 2022. On 16 May 2022, employees were sent a reminder email. This email provides supplementary information regarding the vote such that it would appear that employees were notified of the exact time of the vote on 16 May 2022. Further, the NERR omits sufficient detail as to the employees the Agreement is proposed to cover. This raises an issue as to whether relevant employees were aware of their right to be represented in accordance with s 173(3) of the Act, if the NERR was provided to them. However, having regard to the material before the Commission I am satisfied that:

(a) the errors identified at [2] constitute minor procedural or technical errors for the purposes of s 188(2)(a); and
(b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the errors.[1]

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and the material before the Commission, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 29 June 2022. The nominal expiry date of the Agreement is 22 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kenneth Andrew Smith trading as A W Edwards Pty Ltd applied to the Fair Work Commission for the approval of the A W Edwards Pty Ltd Maintenance Plumbers Enterprise Agreement 2022 – 2026. The applicant, an employer in the plumbing industry, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement was a genuine enterprise agreement, whether the agreement was fairly made, and whether it complied with the procedural requirements of the Act.

The Commission examined the evidence and submissions provided by the applicant and the Australian Council of Trade Unions, which represented the employees. The Commission found that the agreement was a genuine enterprise agreement, as it addressed matters of mutual interest to the employer and employees and was not made in circumstances that were unfair. The Commission also found that the agreement complied with the procedural requirements of the Act, including the requirement for the agreement to be in writing and the requirement for the employer to provide the agreement to the employees. The Commission approved the agreement, which will now be registered and enforceable under the Act.

The final orders of the Commission were that the A W Edwards Pty Ltd Maintenance Plumbers Enterprise Agreement 2022 – 2026 be approved as a registered agreement under the Fair Work Act 2009. The agreement will now be registered by the Commission and will be binding on the parties from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established