Watson Fitzgerald & Associates Pty Ltd

[2022] FWCA 4068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Watson Fitzgerald & Associates Pty Ltd

(AG2022/4623)

Watson Fitzgerald & Associates Pty Ltd & CEPU SouthAustralia, Mechanical Services Agreement 2022-2025

Plumbing industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 21 NOVEMBER 2022

Application for approval of the Watson Fitzgerald & Associates Pty Ltd & CEPU South Australia, Mechanical Services Agreement 2022-2025

An application has been made for approval of an enterprise agreement known as the Watson Fitzgerald & Associates Pty Ltd & CEPU South Australia, Mechanical Services Agreement 2022-2025 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Watson Fitzgerald & Associates Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The copy of the Agreement filed in the Commission contained a discrepancy between the title of the Agreement on the cover page and the title of the Agreement at clause 1. On 21 November 2022, the Employer submitted a revised cover page correcting the title of the Agreement to reflect the title at clause 1. I have determined to exercise my discretion under s 586(a) of the Act to accept the amendment to the Agreement on the basis that it removes the ambiguity created by the discrepancy.

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.

Clause 11 of the Agreement provides that employees under the Agreement will be employed as either full-time daily hire, part-time or casual. Accordingly, it appears that part time employees are not “daily hire” employees. Clause 19.1 of the Agreement provides that employees are entitled to one day’s notice of termination. The provision of one day’s notice to a part time employee who is not a “daily hire” employee may be inconsistent with the National Employment Standards (NES); specifically, the notice of termination obligations under s 117 of the Act. However, noting clauses 3.5 and 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 28 November 2022. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Watson Fitzgerald & Associates Pty Ltd and CEPU South Australia. The dispute centred around the approval of a Mechanical Services Agreement for the period 2022 to 2025. The matter was heard by the Fair Work Commission, which has jurisdiction over such industrial matters. The core issue was whether the proposed agreement complied with the relevant legislative framework, specifically the Fair Work Act 2009, and if it appropriately balanced the rights and interests of both parties.

The court needed to determine if the agreement was a genuine enterprise agreement within the meaning of the Act. This required scrutiny of the agreement's provisions to ensure they were not detrimental to the employees and that the process leading to the agreement's formation was fair and compliant with the procedural requirements of the Act. Additionally, the court considered whether the agreement met the standards of good faith bargaining and whether it was in the best interests of the employees involved.

After reviewing the evidence and arguments presented by both parties, the court concluded that the agreement was indeed a genuine enterprise agreement. It found that the process leading to the agreement was fair, and the terms of the agreement were not detrimental to the employees. The court also noted that the agreement reflected good faith bargaining and was in the best interests of the employees. Consequently, the court approved the Mechanical Services Agreement 2022-2025 between Watson Fitzgerald & Associates Pty Ltd and CEPU South Australia. The decision provided clarity and certainty for both parties, ensuring that the agreement would be implemented as intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established