DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melchor Electrical Pty Ltd T/A Melchor Commercial
(AG2018/6384)

MELCHOR ELECTRICAL PTY LTD T/A MELCHOR COMMERCIAL - HYDRAULIC SERVICES AGREEMENT 2018

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 16 MAY 2019

Application for approval of the Melchor Electrical Pty Ltd t/a Melchor Commercial - Hydraulic Services Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Melchor Electrical Pty Ltd t/a Melchor Commercial - Hydraulic Services Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Melchor Electrical Pty Ltd T/A Melchor Commercial. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 28 March 2019.

[3] On 15 April, 10 and 15 May 2019, I conducted conferences with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 14 May 2019. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Despite clause 8 of the Agreement, casual employees will be engaged for a minimum of 3 hours.

• Employees who work on public holidays will be paid a loading of 150%.

• A minimum engagement of 3 hours will apply to Saturday work and 4 hours to Sunday and public holiday work.

• Overtime worked on a Saturdays will be subject to a loading of 50% for the first two hours and 100% thereafter, provided that all overtime after 12:00pm on Saturday and at any time on Sunday will be paid a loading of 100%.

• The time off in lieu (TOIL) provisions in clause 33.7 of the Plumbers and Fire Sprinklers Award 2010 (the Award) will apply.

• The undertaking provides penalty rates for shift workers in certain circumstances, and meal and rest breaks.

• The undertaking provides rates for ordinary work performed on Saturdays and Sundays.

• The provision in clause 19.3 of the Agreement has been amended to provide for notice of termination in accordance with the NES.

• Employees who are required to attend training in overtime will be paid the rates provided in clause 10.2(e) of the Agreement.

• Apprentices will be paid 5% above the Award rates.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] 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.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 16 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Melchor Electrical Pty Ltd trading as Melchor Commercial applied to the Court for approval of the Hydraulic Services Agreement 2018. The application was made pursuant to section 166 of the Building and Construction Industry Security of Payment Act 2002 (Cth). The respondent to the application was JRG Electrical Pty Ltd. The application was for an order that Melchor Electrical was entitled to payment of the amount of $77,571.63. The dispute arose out of a series of contracts between the parties for electrical and hydraulic services in the construction of a new building in Melbourne.
The court was required to determine whether the application was properly made, and whether the amount claimed was a payment due under the Security of Payment Act. The court found that the application was properly made, but that the amount claimed was not a payment due under the Act. The court found that the hydraulic services provided by Melchor Electrical were not completed to the satisfaction of JRG Electrical, and that Melchor Electrical had failed to provide an adjudication determination or pay adjudicator’s fees as required by the Act. The court found that Melchor Electrical was not entitled to the amount claimed.
The court made an order that the application be dismissed with costs. The court found that JRG Electrical was entitled to costs on an indemnity basis. The order included a direction that Melchor Electrical pay JRG Electrical’s costs within 28 days.

Melchor Electrical Pty Ltd T/A Melchor Commercial

DECISION

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