O’Connors Mechanical Construction (SA) Pty Ltd

[2023] FWCA 25

[2023] FWCA 25

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

O’Connors Mechanical Construction (SA) Pty Ltd

(AG2022/5351)

O’CONNORS PLUMBING MECHANICAL SERVICES & CEPU SOUTH AUSTRALIA, ONSITE MECHANICAL SERVICES AGREEMENT 2022.

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 4 JANUARY 2023

Application for approval of the O’CONNORS PLUMBING MECHANICAL SERVICES & CEPU South Australia, Onsite Mechanical Services Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the O’CONNORS PLUMBING MECHANICAL SERVICES & CEPU South Australia, Onsite Mechanical Services Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by O’Connors Mechanical Construction (SA) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 4 January 2023 and was determined on the papers.

1. It is noted that the copy of the Agreement that was voted on by the employees contained a title page with the incorrect title of the Agreement. A copy of the Agreement with a corrected title page was lodged with the application. I have determined to exercise my discretion under s.586 of the Act to publish the copy of the Agreement with the corrected title page.

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

·   Clause 19 of the Agreement provides for notice of termination in the amount of one day on either side, which is consistent with clause 9.3(a) of the Plumbing and Fire Sprinklers Award (the Award) in respect to daily hire employees. However, apprentices cannot be employed on a daily hire basis, and the Agreement covers apprentices but does not provide notice of termination for these employees separately to clause 19. As clause 19 does not specify whether it only applies to daily hire employees or otherwise, this may be inconsistent with s.117 of the Act.

1. Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that the agreement will be read and interpreted in conjunction with the NES and where there is any inconsistency the NES will prevail. As a result of clause 6, clause 19 will not apply to the extent that it is inconsistent with the NES.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 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 31 October 2025.

COMMISSIONER

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