Ara Fire Protection Services Pty Ltd

[2023] FWC 3374

[2023] FWC 3374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ara Fire Protection Services Pty Ltd

(AG2023/4453)

ARA FIRE PROTECTION SERVICES PTY LTD ALARMS EMPLOYEE COLLECTIVE AGREEMENT 2023 - 2025

Building services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 14 DECEMBER 2023

Application for approval of the ARA Fire Protection Services Pty Ltd Alarms Employee Collective Agreement 2023 - 2025

1. ARA Fire Protection Services Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the ARA Fire Protection Services Pty Ltd Alarms Employee Collective Agreement 2023 - 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023, on 19 January 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test (BOOT) requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The BOOT provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made after 6 June 2023, on 14 November 2023.

Notice of Employee Representational Rights (NERR)

1. The NERR provided to employees contained an error in that the name of the Agreement was incorrect, reading “Asset Fire Security & Mechanical Services Queensland Alarms Employee Collective Agreement”, when the Agreement’s title on the face of the document reads “ARA Fire Protection Services Pty Ltd Alarms Employee Collective Agreement 2023 - 2025”. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

National Employment Standards precedence term – Clause 6.4

1. Several clauses were identified which may be inconsistent with the National Employment Standards (NES).

1. Clauses 41.17 to 41.22 of the Agreement provide compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. However, it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act.

1. Clause 42.8 of the Agreement states that, where there is agreement between the majority of employees concerned and the employer, and subject to statutory limitations, other ordinary working days may be substituted for a public holiday specified in this clause. This appears to be inconsistent with s.115(3) of the Act which provides that an employer and individual employee may agree on the substitution of a day or part-day of a public holiday.

1. Clause 19.7 of the Agreement provides that in the case of termination, if an employee fails to give notice the employer shall have the right to withhold monies due to the employee with a maximum amount equal to the amount the employee would have received above. We note that this clause does not appear to limit the source of the monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that clause 19.7 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 22.1 appears to provide that, in the case of abandonment of employment, payment shall be made up to the time of abandonment only and no notice is payable. This clause appears to provide that employees deemed to have abandoned their employment in accordance with this clause will not be afforded their minimum notice of termination entitlement as per s.117(3) of the Act. This is not consistent with s.123 of the Act, which does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s.117 of the Act.

1. I note that in accordance with the NES precedence term in Clause 6.4 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

BOOT Considerations

1. In order to approve an enterprise agreement, s.193 and s.193A provide that the Commission must be satisfied that an Agreement passes the better off overall test (BOOT). Relevantly, under s.193 the Commission must be satisfied that (at the time the Agreement approval application was made, or the ‘test time’)[2], each reasonably foreseeable employee subject to coverage by the Agreement and otherwise covered by a modern award would be better off overall if the Agreement applied to the employee when compared against the relevant award. Pursuant to s.193A(2), the Commission is to perform a global assessment of whether each employee would be better off having regard to the terms of the Agreement that are both more and less beneficial than the modern award. Relevantly, in performing the assessment, the Commission may only have regard to the types of employment that are “reasonably foreseeable” at the test time.[3] [4].

1. Correspondence was sent to the Employer by the Commission on 30 November 2023 raising a number of concerns, including that the Agreement mentions “trainees” at Clause 26.5, but does not contain any rates of pay or other provisions for trainees that would allow the Commission to consider the BOOT against the relevant modern award, the Electrical, Electronic and Communications Contracting Award 2020, for this work type. The Employer responded on 7 December 2023 advising that the reference in clause 26.5 to trainees is a typographical error, and that trainees will not be engaged under the Agreement.

1. I am satisfied that per s.193A(6A) of the Act, trainees are not a type of employment that is reasonably foreseeable to be subject to the coverage of the Agreement for the purposes of s.193A(6) of the Act and the BOOT. Should the Employer commence employing trainees under this Agreement, an application under s.227A is available for the reconsideration of the BOOT.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings are attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings and findings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2023. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

[2] Fair Work Act 2009 (Cth) (FW Act) s.193(6).

[3] FW Act s.193A(6).

[4] FW Act s.193A(6A).

Printed by authority of the Commonwealth Government Printer

<AE522785  PR769490>