Squirt Fire Pty Ltd

[2021] FWCA 6190

[2021] FWCA 6190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Squirt Fire Pty Ltd
(AG2021/7614)

SQUIRT FIRE SPRINKLER FITTERS ENTERPRISE AGREEMENT 2021

Electrical contracting industry
COMMISSIONER PLATT	ADELAIDE, 11 OCTOBER 2021

Application for approval of the Squirt Fire Sprinkler Fitters Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Squirt Fire Sprinkler Fitters Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Squirt Fire Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 4 October 2021.

[3] On 8 October 2021, 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] There are six National Employment Standards (NES) issues that require comment.

•  Clause 6.3.3 of the Agreement provides that when taking personal leave, the employee must notify the company prior to 8.00am on the day of the absence, unless special circumstances apply for the employee’s inability to attend. Similarly, clause 6.4.1 states that when taking carer’s leave, the employee must notify the company prior to the absence, and if not possible the employee will notify the company by telephone of such absence at the first opportunity. These requirements may be more onerous than provided for in s.107(2)(a) of the Act, which states that an employee must give notice of personal/carer’s leave as soon as practicable, which may be a time after the leave has commenced.

•  Clause 6.3.9 of the Agreement states that during their first year of employment, an employee’s personal leave entitlement will be at the rate of one day at the beginning of each month for the first ten calendar months. This may be inconsistent with s.96(2) of the Act, which states that an employee’s entitlement to annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year.

•  Clause 6.4.1 of the Agreement states that employees may take carer’s leave to care for their immediate family or members of the employee’s household who need care and support when they are ill. Clause 6.4.3 states that unpaid carer’s leave can only be taken to provide care to an immediate family member who is ill. This may be inconsistent with s.97 of the Act, which states that an employee may take carer’s leave to care for an immediate family member or member of their household when they are affected by a personal illness or injury or an unexpected emergency.

•  Clause 3.4.3 of the Agreement states that abandonment of employment will operate from the date of an employee’s last attendance at work or the last notified absence. This may be inconsistent with ss.117-123 of the Act, which sets out the requirements for notice of termination or payment in lieu of termination.

•  Clause 3.5.3 of the Agreement states that if an employee fails to give notice, the company will have the right to withhold monies due to the employee with a maximum amount equal to the ordinary time rate of pay for the period of notice. This deduction may be inconsistent with the payment of entitlements due to employees under the NES.

•  Clause 3.5.5 of the Agreement provides that the period of notice included in clause 3.5.1 will not apply in the case of dismissal for conduct that justifies instant dismissal, including refusal of duty or misconduct and in such cases wages will be paid up to the time of dismissal. This test appears to be wider than that considered in s.123 of the Act, which provides for summary dismissal when an employee engages in serious misconduct as defined by regulation 1.07 of the Fair Work Regulations 2009.

[5] Clause 1.9 of the Agreement is an effective NES precedence clause, in that where there is an inconsistency between the Agreement and the NES, and the NES provides greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses of the Agreement will not apply to the extent they are inconsistent with the NES.

[6] The Applicant has submitted an undertaking in the required form dated 8 October 2021. The undertaking deals with the following topics:

•  Part-time employees and their employer will agree in writing that the employee may work part-time, the hours to be worked, the days upon which they will be worked, the commencing and finishing times for work, the classification applying to work that is to be performed, and the period of part-time employment.

•  Time off in lieu of overtime (TOIL) must be agreed in writing, and will be paid out on termination at overtime rates.

•  Despite clause 9.2.4.6 of the Agreement, only Mechanical Services employees can be engaged as daily hire employees.

[7] 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 supported the undertaking.

[8] 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.

[9] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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 after the date of approval of the Agreement. The nominal expiry date is 1 September 2024.

COMMISSIONER

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