Robert Davidson

[2013] FWCA 9371

[2013] FWCA 9371

FAIR WORK COMMISSION

DECISION

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

Robert Davidson
(AG2013/11060)

SOUTHERN PLUMBING ENTERPRISE AGREEMENT 2013 - 2016

Retail industry
COMMISSIONER BULL	SYDNEY, 29 NOVEMBER 2013

Application for approval of the Southern Plumbing Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Southern Plumbing Enterprise Agreement 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 15 November 2013, the Commission wrote to the Applicant via its representative with respect to a number of concerns it had with aspects to the Agreement, in particular, the coverage of the Agreement, the span of ordinary hours, allowances, overtime, rostered days off, cashing out of annual leave and the accrual personal leave.

[3] Correspondence was received from the Applicant’s representative on 19 and 20 November 2013.

[4] The Commission held a conference via telephone on 25 November 2013 to discuss a number of concerns that remained outstanding from the correspondence. In attendance at the conference was the Applicant’s representative, the Applicant and the employee bargaining representative.

Ordinary span of hours

[5] In its correspondence to the Applicant, the Commission noted that the ordinary span of hours at sub clause 35.1 of the Agreement is greater than the ordinary span of hours provided for under the General Retail Industry Award 2010 (the Retail Award) and the Plumbing and Fire Sprinklers Award 2010 (the Plumbing Award), being the relevant modern awards for the purpose of the better off overall test.

[6] The Applicant submits that the extended ordinary span of hours under the Agreement is intended to provide a flexibility option on the possible introduction of internet based selling in the future.

[7] In its correspondence that Applicant states that no employees who are within the coverage of the Plumbing Award will be required to commence work any earlier as they will not be involved in internet selling. With respect to employees who are within the coverage of the Retail Award, the Applicant has stated that it will ensure that any employee who is required to commence work as early as 5:00am will be better off overall pursuant to sub clause 15.1 in the Agreement that guarantees any employees who work between 5:00am and 6:30am will be paid at least 5 per cent more than they would be paid under the Retail Award.

Personal leave

[8] With respect to clause 45 - Personal Leave, and in particular, sub clause 45.3 of the Agreement the Commission requested correspondence from the Applicant in relation to the operation of this clause and how it was consistent with the National Employment Standards.

[9] The Applicant has submitted that the accrual of personal leave under the Agreement is covered by two clauses, 45.2 and 45.3. Sub clause 45.2 provides for the accrual of personal leave in the first year of employment and sub clause 45.3 provides for the accrual of personal leave in the second and subsequent years of employment. The effect of sub clause 45.3 is that employees will receive all of their personal leave for the second and subsequent years of their employment at the beginning of the year rather then progressively during the year.

[10] The Applicant submits that the Agreement provision provides a greater benefit to employees than if it was accrued on a pro rata basis as provided for in the National Employment Standards.

Clothing allowance and leave loading

[11] In its correspondence to the Applicant the Commissioner notes that the Agreement did not provide a clothing allowance to employees who are within the coverage of the Retail Award and that the Agreement does not provide leave loading to employees.

[12] The Applicant has provided a number of indicative rosters and calculations to demonstrate that despite employees not receiving a clothing allowance and leave loading, employees are still better off overall than they would be under the relevant modern awards.

Undertakings

Coverage of Agreement

[13] The Commissioner notes at clause 4 - Application of Agreement, and in particular, sub clause 4.1(a) the Agreement covers Southern Plumbing. Southern Plumbing is defined in Part M - Definition of terms of the Agreement as ‘Southern Plumbing Supplies Pty Ltd ACN 120 287 452 and Neko Australia Pty Ltd ACN 97 145 718 887’.

[14] The Applicant has provided an undertaking that all employees who are within the coverage of the Agreement will be employed by only Southern Plumbing Supplies Pty Ltd.

Cashing out of annual leave

[15] With respect to clause 44 - Annual Leave, and in particular sub clause 44.9 of the Agreement, the Applicant has provided an undertaking that each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee.

Rostered days off

[16] In its correspondence to the Applicant the Commission notes that pursuant to clause 29.2 of the Plumbing Award, employees receive a rostered day off every four week period. The Agreement does not provide this entitlement to those employees who are within the coverage of the Plumbing Award.

[17] The Applicant has provided an undertaking that all employees who are covered by the Agreement and who are within the coverage of the Plumbing Award may elect to either of the following working hours arrangements:

● Ordinary hours of 8 hours per day, Monday to Friday, with a rostered day off every four weeks, in which case the minimum fortnightly rate of pay for the employee will be adjusted in accordance with clause 8.3 of the Agreement; or

● Ordinary hours of 80 hours per fortnight without a rostered day off, in which case the minimum fortnightly rate of pay for the employee set out in Schedule 1 of the Agreement will apply to the employee.

[18] Upon review of the correspondence and undertakings provided by the Applicant, I am satisfied that employees covered by this Agreement are better off overall.

[19] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[20] I have sought the views of the bargaining representative, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

[21] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[22] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 6 December 2013. The nominal expiry date of the Agreement is 30 November 2016.

COMMISSIONER

Annexure A

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