Westside Plumbing Pty Ltd

[2023] FWCA 96

[2023] FWCA 96

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Westside Plumbing Pty Ltd

(AG2022/5340)

WESTSIDE PLUMBING PTY LTD (MECHANICAL CONSTRUCTION) ENTERPRISE AGREEMENT 2022

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 11 JANUARY 2023

Application for approval of the Westside Plumbing Pty Ltd (Mechanical Construction) Enterprise Agreement 2022.

1. An application has been made for approval of an enterprise agreement known as the Westside Plumbing Pty Ltd (Mechanical Construction) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Westside Plumbing Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 29 December 2022.

1. On 10 January 2023, 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.

1. There are five National Employment Standards (NES) issues that require comment:

·   Clause 23.1 of the Agreement provides annual leave in days. This appears to be inconsistent with s.87(1) of the Act.

·   Clauses 24.2(b) and 25.2 of the Agreement appear to omit the child, parent, grandparent, grandchild or sibling of the employee’s spouse for the purposes of carer’s leave and compassionate leave respectively. This appears to be inconsistent with s.12 of the Act.

·   Clause 30.3 of the Agreement provides that the employer may recover 50% of the cost of providing training to an employee, including wages paid to the employee during that period, from any monies due to the employee on termination should the employee’s employment end within 12 months of receiving training. This may allow for deductions from accrued NES entitlements.

·   Clause 38.5 of the Agreement provides that following termination the employer may deduct any money owing, including from an employee’s termination pay. This appears to be inconsistent with s.324 of the Act.

·    Clause 42.1 of the Agreement provides that termination by abandonment operates from the employee’s last date of work or authorised absence. This appears to be inconsistent with s.117(1) of the Act.

1. Clause 1.4 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 11 January 2023. The undertaking deals with the following topics:

·   Any deductions from an employee’s wage will be done in a manner consistent with ss.324 to 326 of the Act.

·   The dispute resolution procedure will apply to matters arising under the Agreement and National Employment Standards, specifically clause 5 of the Agreement.

·   In the event that an employee is terminated by reason of abandonment of employment, a notice of termination will be provided as per s.117(1) of the Act (if applicable).

·   Annual leave and personal leave shall be in line with the National Employment Standards.

·   Clause 13.2 of the Agreement does not allow Westside Plumbing Pty Ltd to alter or change the span of ordinary hours outside of those prescribed in the Agreement without payment of the appropriate penalties or loading.

1. 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 that responded, supported the undertaking.

1. 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.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. 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.

1. 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 31 October 2025.

COMMISSIONER

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