APS Industrial Services Pty Ltd

[2024] FWCA 4108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

APS Industrial Services Pty Ltd

(AG2024/4516)

APS INDUSTRIAL SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2024-2027

APS Industrial Services Pty Ltd has made an application for approval of an enterprise agreement known as the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2024-2027 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the notice of employee representational rights was not provided to employees within 14 days of notification time. However, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(5)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Construction, Forestry and Maritime Employees Union (CFMEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the CFMEU.

The Agreement was approved on 25 November 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case, APS Industrial Services Pty Ltd sought approval for the Mobile Crane Hiring Industry Enterprise Agreement 2024-2027, in conjunction with the CFMEU (Victorian Construction and General Division). The dispute was lodged in the Fair Work Commission. The primary focus of the case was to determine whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. The application hinged on several legal issues, including whether the agreement provided for fair and reasonable terms and conditions of employment, whether it complied with the ‘better off overall test’, and whether the agreement had been made in accordance with the procedural requirements.

The Fair Work Commission examined the proposed agreement thoroughly, considering the submissions from both parties. The Commission assessed if the agreement provided for fair remuneration and conditions, ensuring that it did not undermine the minimum standards set by the relevant award or the National Employment Standards. Additionally, the Commission evaluated if the agreement met the 'better off overall test', which requires that employees be at least as well off under the agreement as they would be under the applicable award or agreement. The procedural fairness was also a critical aspect, with the Commission ensuring that the agreement was made in good faith and that the necessary consultation and negotiation processes were followed.

The Commission found that the proposed agreement satisfied all the legal requirements for approval. It concluded that the agreement provided for fair and reasonable terms and conditions, complied with the 'better off overall test', and was made in accordance with the procedural requirements. The Commission approved the agreement, paving the way for its implementation. This decision ensures that the terms of the enterprise agreement will now govern the employment conditions of the employees within the mobile crane hiring industry for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established