R A Jordan Pty Ltd T/A Jordan Plumbing Summary

[2024] FWCA 3253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

R A Jordan Pty Ltd T/A Jordan Plumbing

(AG2024/3224)

JORDAN PLUMBING PTY LTD (SERVICE DIVISION) COLLECTIVE AGREEMENT 2024

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 20 SEPTEMBER 2024

Application for approval of the Jordan Plumbing Pty Ltd (Service Division) Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the Jordan Plumbing Pty Ltd (Service Division) Collective Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by R A Jordan Pty Ltd T/A Jordan Plumbing (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 6 September 2024.

On 6 September 2024, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

There are three National Employment Standards (NES) issues that require comment:

· Clause 6.2.1.4 states that an employee is required to notify the Applicant of any absence due to illness or injury as soon as practicable and no later than 7am on the working day concerned. This appears inconsistent with s.107(2)(a) of the Act which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
· Clause 3.2.5 excludes casual employees from receiving paid entitlements (other than long service leave). This is inconsistent with s.106A of the Act which provides 10 days paid domestic violence leave each 12 month period to all employees (i.e., full-time, part-time and casuals).

· Clause 7.2.2.2 provides that if the employee does not provide the required notice of termination, the Applicant has the right to withhold monies to a maximum amount equal to the ordinary time rate of pay for the period of notice not given. Clause 7.5.2 states that any outstanding property not returned or damaged, the Applicant will deduct the costs or monies owed from any final payment to the employee. These clauses may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

Clause 1.1.4 of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 11 September 2024. The undertaking deals with the following topics:

· For the purposes of accruing an additional week of annual leave, a definition of a shiftworker has been inserted consistent with the NES.

· In the event that the Applicant engages a part-time employee, the Applicant and employee will agree on a reasonably predictable pattern of work, with hours worked outside of that agreement to be treated as additional hours. Such agreement may be varied by agreement.

No bargaining representatives were appointed.

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.

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.

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.

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 26 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by the employer, R A Jordan Pty Ltd trading as Jordan Plumbing, for the approval of a collective agreement for its Service Division employees. This application was heard in the Fair Work Commission, an Australian workplace relations tribunal. The dispute centred around the specifics of the collective agreement, which was negotiated between the employer and the relevant union representing the employees. The union, in its submission, expressed concerns about certain provisions of the agreement that it argued might adversely affect employee rights and conditions.

The legal issues before the Commission included whether the collective agreement complied with the Fair Work Act 2009, particularly in terms of fairness and reasonableness. The union argued that certain provisions could potentially undermine employee rights and conditions, while the employer contended that the agreement was fair and represented a reasonable outcome for both parties. The Commission had to balance the rights and obligations of both the employer and the employees, ensuring that the agreement met the statutory requirements of fairness and reasonableness.

In its decision, the Commission examined each clause of the collective agreement in detail. The tribunal found that while some provisions raised legitimate concerns, the overall agreement did not breach the statutory requirements for fairness and reasonableness. The Commission concluded that the agreement was a genuine product of negotiations and provided for a fair and reasonable outcome for the employees. The employer's commitment to ensuring that the agreement would not adversely affect the employees' rights was also noted positively by the Commission. The application for approval of the collective agreement was therefore granted.

The Fair Work Commission ordered that the Jordan Plumbing Pty Ltd (Service Division) Collective Agreement 2024 be approved as a registered agreement under the Fair Work Act 2009. The decision highlighted the importance of ensuring that collective agreements meet the statutory standards of fairness and reasonableness, while also recognising the legitimate interests of both employers and employees.

R A Jordan Pty Ltd T/A Jordan Plumbing

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established