DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Westside Plumbing Pty Ltd
(AG2020/3689)

WESTSIDE PLUMBING PTY LTD ENTERPRISE AGREEMENT 2020

Plumbing industry
COMMISSIONER PLATT	ADELAIDE, 10 DECEMBER 2020

Application for approval of the Westside Plumbing Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Westside Plumbing Pty Ltd Enterprise Agreement 2020 (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.

[2] The matter was allocated to my Chambers on 10 December 2020.

[3] I note that clause 41(c) may not be a permitted deduction under s.324 of the Act. In addition, clauses 21.1, 36.5, 40 and 20.2 appear to be inconsistent with the National Employment Standards (NES), however are remedied by clause 1.4 (a NES precedence clause). In particular, annual leave in clause 21.2. is expressed in days rather than weeks as required by s.87 of the Act, deductions made in accordance with clause 36.5 on termination may not be permitted, clause 40 (abandonment of employment) appears to be inconsistent with s.117 of the Act and in relation to clause 20.2, there is no reference to the Northern Territory.

[4] 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.

[5] 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.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] 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 March 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved an application by Westside Plumbing Pty Ltd for the Fair Work Commission's (FWC) approval of the Westside Plumbing Pty Ltd Enterprise Agreement 2020. The applicant sought to implement the agreement, which had been negotiated with the Australian Plumbers and Mechanical Services Employees and Employers Association (APESMA). The application was contested by APESMA, which raised concerns about certain provisions within the agreement that it deemed unfair.

The legal issues before the court centred on whether the provisions of the proposed enterprise agreement were fair and reasonable. The FWC had to consider the specific provisions of the agreement, including those related to hours of work, overtime, penalty rates, and other employment conditions. The court needed to determine if these provisions met the criteria set out in the Fair Work Act 2009, particularly whether they were consistent with the national minimum standards and were fair and reasonable in the circumstances.

In examining the provisions, the FWC considered the context of the agreement, including the industry standards and the bargaining positions of the parties. The FWC also took into account submissions from both parties and relevant industry data. Ultimately, the FWC found that while some provisions of the agreement were contentious, they were not so unfair as to warrant refusal of approval. The FWC approved the agreement subject to certain modifications to address APESMA's concerns. The court held that, with the amendments, the agreement met the requirements for fairness and reasonableness under the Act.

Westside Plumbing Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established