Selter Shaw Plumbing Pty Ltd Summary

[2025] FWCA 80

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Selter Shaw Plumbing Pty Ltd

(AG2024/4927)

SELTER SHAW PLUMBING ENTERPRISE AGREEMENT 2024

Plumbing industry
COMMISSIONER LIM	PERTH, 9 JANUARY 2025

Application for approval of the Selter Shaw Plumbing Enterprise Agreement 2024.

Selter Shaw Plumbing Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Selter Shaw Plumbing Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 35.3 states if an employee fails to give the required notice, the employer may withhold from any wages due to the employee on termination the equivalent of pay for the period of shortfall in the required notice. The source from which monies may be deducted has not been specified, which may result in the deduction of monies from accrued NES entitlements.
(b)Clause 36.3(d) provides that severance pay is not payable where the employer finds suitable alternative employment; however, this provision does not appear to be subject to an application to the Fair Work Commission as required by s 120 of the Act.

However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 9 January 2025 and, in accordance with s 54, will operate from 16 January 2025. The nominal expiry date of the Agreement is 9 January 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Selter Shaw Plumbing Pty Ltd, sought approval of the Selter Shaw Plumbing Enterprise Agreement 2024 in the Fair Work Commission. The dispute involved the terms of the proposed enterprise agreement, which the applicant wished to apply to its employees, and the process by which the agreement was negotiated and formulated. The respondents, represented by the relevant union, contested certain provisions of the agreement, arguing that the process was not conducted fairly and in accordance with the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated, the process followed was fair, and the terms of the agreement complied with the statutory requirements. The Commission needed to determine whether the applicant had met its burden of proving that the agreement was genuinely negotiated and that the process was conducted fairly. Additionally, the Commission had to examine whether the terms of the agreement were procedurally and substantively fair, taking into account the relevant legislative provisions and principles of natural justice.

The Commission considered the evidence presented by both parties, including the negotiation process, the conduct of the parties, and the terms of the agreement. It was found that the applicant had met its burden of proving that the agreement was genuinely negotiated and that the process was fair. The Commission noted that the applicant had taken steps to ensure a fair negotiation process, including providing adequate notice, engaging in good faith negotiations, and providing information to the respondents. Furthermore, the Commission determined that the terms of the agreement were procedurally and substantively fair, as they were in line with the relevant provisions of the Fair Work Act and did not unjustifiably disadvantage the employees. Consequently, the application for approval of the agreement was successful.

The Fair Work Commission approved the Selter Shaw Plumbing Enterprise Agreement 2024, subject to certain conditions, and ordered that the agreement be registered with the Fair Work Commission. The applicant was required to provide the respondents with a copy of the approved agreement and ensure that its employees were aware of its contents. Additionally, the applicant was directed to take steps to implement the agreement and address any issues that may arise during its operation.

Selter Shaw Plumbing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established