PCG Commercial Pty Ltd

[2020] FWCA 5918

[2020] FWCA 5918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

PCG Commercial Pty Ltd
(AG2020/2826)

PCG COMMERCIAL PTY LTD ELECTRICAL SUPPLY INDUSTRY QUEENSLAND ENTERPRISE AGREEMENT 2018 - 2021

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 6 NOVEMBER 2020

Application for approval of the PCG Commercial Pty Ltd Electrical Supply Industry Queensland Enterprise Agreement 2018 - 2021.

[1] PCG Commercial Pty Ltd (The Employer) has applied for approval of an enterprise agreement known as the PCG Commercial Pty Ltd Electrical Supply Industry Queensland Enterprise Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement.

[2] On application to the Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) on behalf of the Employer identified a typographical error throughout the application. The Employer had been incorrectly named as “PGC Commercial Pty Ltd” in the application materials and throughout the Agreement. The correct name is “PCG Commercial Pty Ltd”. I consider it appropriate in the circumstances to exercise my discretion pursuant to s.586 of the Act to amend the Form F19, Form F20 and Form F21 to reflect the correct Employer name. The Applicant’s name to matter AG2020/2826 has also been changed pursuant to Order [PR724284]. On 5 November 2020 the Employer provided to the Commission and the CEPU a correct version of the Agreement, correcting the Employer’s name to PCG Commercial Pty Ltd.

[3] The Commission raised certain concerns regarding the Agreement with the Employer, and as a result, written undertakings were provided by the Employer. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the CEPU regarding the undertakings. The CEPU wrote to my chambers advising that the CEPU supports the application and leaves the matter to the determination of the Commission.

[4] I note that the following terms of the Agreement appear inconsistent with the National Employment Standards (the NES):

•  Clause 6.12 with regards to annual leave, where it appears more onerous as to the evidence requirements for personal leave at s.107 of the Act;

•  Clause 6.7 with regards to personal leave, where it accrues pro-rata not progressively per s.96(2) of the Act;

•  Clause 6.7 with regards to personal leave, where it appears more onerous as to the evidence requirements for personal leave at s.107(3) of the Act;

•  Clause 6.7 with regards to personal leave, where it is inconsistent with s.97 of the Act which does not limit the amount of accrued personal/carer’s leave that can be taken in any 12 month period;

•  Clause 6.7 with regards to personal leave, where the definition of continuity of service is inconsistent with both s.89(2) of the Act with relation to the period of other leave while on annual leave and the definition of continuous service at s.22 of the Act which does not provide that continuous service is broken by any paid period of personal leave;

•  Clause 6.7 with regards to personal leave, which appears to have the effect of excluding unpaid community service leave from the definition of continuous service contrary to s.22 of the Act;

•  Clause 6.7 with regards to personal leave, which appears to have the effect of excluding a member of the employee’s household provided at s.97(b) of the Act;

•  Clause 2.7.2.5 with regards to termination, which appears to expand on the definition of serious misconduct at s.12 of the Act and the limits of the scope of subdivision 11 at s.123(1)(b) of the Act which states that notice does not apply in the case of serious misconduct; and

•  Clause 2.8.11 with regards to redundancy, which appears to be inconsistent with the definition of continuous service at s.22 of the Act which does not exclude unpaid stand down or unpaid community service leave regardless of the duration.

[5] Clause 7.2 of the Agreement provides that “If any provision of the agreement is less beneficial than the NES, the NES will prevail”. I emphasis clause 7.2 of the Agreement with reference to the abovementioned clauses.

[6] This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act. The Employer provided information that satisfied me that there were no employees of the Employer employed at the time the Agreement was made with the CEPU who would be covered by the Agreement.

[7] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the CEPU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[8] I am satisfied that the undertakings will not cause financial detriment to any employee that will be covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[9] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the CEPU and that the Agreement covers it.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 November 2020. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

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<AE509450  PR724283>

Annexure A: