Origin Energy Limited T/A Origin

[2020] FWCA 531

[2020] FWCA 531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Origin Energy Limited T/A Origin
(AG2020/20)

ORIGIN ENERGY (LPG SOUTH AUSTRALIA) ENTERPRISE AGREEMENT 2018

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 4 FEBRUARY 2020

Application for approval of the Origin Energy (LPG South Australia) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Origin Energy (LPG South Australia) Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Origin Energy Limited T/A Origin. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 January 2020.

[3] On 28 January 2020, 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.

[4] The Applicant has submitted an undertaking in the required form dated 31 January 2020. The undertaking deals with the following topics:

•  Clause 9.2 (Qualifying Period of Employment) and 36 (Termination of Employment) of the Agreement will operate such that, where an employee does not give the required notice of termination, the employee will only forfeit payment for any period of the required notice period that is not given or worked by the employee.

•  Clause 36 (Termination of Employment) of the Agreement applies to apprentices but does not apply to employees to whom a training arrangement applies and whose employment is for a specified period of time or is, for any other reason, limited to the duration of the traineeship agreement.

•  Clause 38 (Suitable Alternate Employment) of the Agreement will only operate in a manner that is consistent with s.122(3) of the Act.

•  In regards to minimum rates of pay for employees engaged as adult apprentices under the Agreement, employees that are subject to clause 9.3.5(g) (Adult Apprentices) of the Agreement will be paid at least the rates of pay that are payable to adult apprentices under the Plumbing and Fire Sprinklers Award 2010 (Plumbing Award) or the Road Transport and Distribution Award 2010 (Transport Award), as relevant to the employee’s classification under the Agreement, plus an additional amount equal to 2.5% of the applicable rate.

•  Employees engaged under the Gas Fitter 1 classification, in the Agreement, who work a shift in a shift roster that does not last for at least 5 consecutive shifts, will be paid the overtime rates in accordance with clause 13 instead of the shift allowances in clause 12.4 of the Agreement.

[5] I note that the following clauses appear to be inconsistent with the National Employment Standards (NES). However, given there is a NES precedence clause at clause 5 of the Agreement, the NES will apply to the extent of these inconsistencies listed below:

•  Clause 13.1.4 states that an employee may be required to work on any public holiday provided that the employee is notified the day before. This appears to be inconsistence with s.114 of the Act which provides that employees are entitled to be absent on a public holiday.

•  Clause 28 states that employees may be required to work on public holidays. This appears to be inconsistent with s.114 of the Act, which provides that employees are entitled to be absent on a public holiday.

•  Clause 26.2 states that employees must provide notice of absence of personal leave on the first day of the absence. This appears to be inconsistent with s.107 of the Act which provides that employees must give notice of absence on personal leave as soon as practicable, which may be a time after the leave has started.

•  Clause 26.2 states that except in extenuating circumstances, employees will not take carer’s leave when another person is available to provide care and support for the same family or household member. This clause appears to impose an additional restriction on employees that is not found in ss.97 or 103 of the Act.

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

[7] 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.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] The “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia”, 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.

[10] 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.

[11] 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 30 June 2021.

COMMISSIONER

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