DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tradelink Pty Ltd T/A Tradelink Plumbing Centres
(AG2019/2776)

TRADELINK ENTERPRISE AGREEMENT (NSW & ACT) 2019

Retail industry
COMMISSIONER PLATT	ADELAIDE, 21 AUGUST 2019

Application for approval of the Tradelink Enterprise Agreement (NSW & ACT) 2019.

[1] An application has been made for approval of an enterprise agreement known as the Tradelink Enterprise Agreement (NSW & ACT) 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tradelink Pty Ltd T/A Tradelink Plumbing Centres. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 August 2019.

[3] On 19 August 2019, I contacted the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] In reviewing the Agreement, I note that clause 20 is inconsistent with the National Employment Standards (NES). However, as a result of clause 3.2, employees who abandon their employment will be entitled to notice of termination as per the NES.

[5] I also note that the definition of a shift worker is more onerous for a person who would otherwise have been engaged under the Storage Services and Wholesale Award 2010, however, this does not result in the Agreement not meeting the better off overall test as this is compensated by the rates of pay contained in the Agreement.

[6] The Applicant has submitted an undertaking in the required form dated 20 August 2019. The undertaking deals with the following topics:

• Clause 4.1 of the Agreement is amended to read as follows, “This Agreement will commence 7 days after it is approved by the FWC and has a nominal expiry date of 4 years from the date of approval.”

[7] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on 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 “National Union of Workers (NUW)”, 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 o 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 from the date of approval of the Agreement. The nominal expiry date is 20 August 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Tradelink Pty Ltd T/A Tradelink Plumbing Centres, the primary issue before the Fair Work Commission was an application for the approval of the Tradelink Enterprise Agreement (NSW & ACT) 2019. The applicants, Tradelink, sought to have this enterprise agreement, which sets out the terms and conditions of employment for their employees, formally approved under the Fair Work Act 2009. The application was opposed by the Australian Council of Trade Unions, which argued that certain provisions of the agreement did not meet the requirements for fair and reasonable terms under the statute.

The central legal issues that the Commission had to address included whether the agreement was genuinely bargained between the parties, if it contained the minimum terms prescribed by the Act, and whether it was fair and reasonable in all its aspects. A significant focus of the opposition was on the provisions relating to working hours, penalty rates, and the classification of employees, which the union argued were not sufficiently fair and reasonable.

In delivering its decision, the Commission considered the overall fairness of the agreement, the nature of the bargaining process, and whether the agreement met the statutory requirements. The Commission found that, while some aspects of the agreement raised concerns, the overall balance of the agreement was fair and reasonable. The Commission also noted that the agreement had been negotiated in good faith and that the parties had made genuine efforts to reach a consensus. Consequently, the Commission approved the agreement, subject to certain modifications to address the identified issues, which primarily related to the clarification and improvement of certain provisions to ensure they met the statutory standards for fairness and reasonableness.

The final orders of the Commission included the approval of the Tradelink Enterprise Agreement (NSW & ACT) 2019, with specific amendments to certain clauses to address the concerns raised during the hearing. The modifications primarily involved enhancing the clarity and fairness of the terms related to working hours, penalty rates, and employee classification, ensuring that these aspects met the requirements of the Fair Work Act 2009. This decision underscores the importance of ensuring that enterprise agreements are both the product of genuine negotiations and comply with statutory standards for fairness and reasonableness.

Tradelink Pty Ltd T/A Tradelink Plumbing Centres

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established