Ara Fire Protection Services Pty Ltd

[2022] FWCA 4066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ara Fire Protection Services Pty Ltd

(AG2022/4679)

ARA Fire Protection Alarms Enterprise Agreement (WA) 2022 - 2025

Fire fighting services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 21 NOVEMBER 2022

Application for approval of the ARA Fire Protection Alarms Enterprise Agreement (WA) 2022 - 2025

Ara Fire Protection Services Pty Ltd (the Applicant) has applied for approval of an enterprise agreement known as the ARA Fire Protection Alarms Enterprise Agreement (WA) 2022 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees was not in the form set out in Schedule 2.1 of the Fair Work Regulations 2009. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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.

I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

· Clause 20.1 - Parental Leave.

However, noting clause 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 Agreement is approved and, in accordance with s.54 of the Act and despite clause 4 of the Agreement, will operate from 28 November 2022. The nominal expiry date of the Agreement is 1 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Ara Fire Protection Services Pty Ltd, an employer, and the Australian Manufacturing Workers’ Union (AMWU), a trade union. The dispute centred on the approval of a proposed enterprise agreement, specifically the ARA Fire Protection Alarms Enterprise Agreement (WA) 2022-2025. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The AMWU, acting on behalf of the employees, sought approval of the agreement, while Ara Fire Protection Services Pty Ltd argued that certain provisions were not in compliance with the statutory criteria.

The central legal issues before the Commission were whether the agreement was "certified as a single, indivisible, and legally binding agreement" and whether it complied with the "better off overall test" as stipulated in the Fair Work Act. Additionally, the Commission had to consider whether the agreement included provisions that were contrary to the "good faith" requirement of the Act. These issues were pivotal in determining the validity and enforceability of the proposed agreement.

In its decision, the Fair Work Commission examined the terms and conditions outlined in the agreement, assessing them against the statutory requirements. The Commission found that the agreement was indeed certified and legally binding, and it satisfied the better off overall test. It was determined that the proposed conditions would not result in a detriment to the employees when compared to their previous conditions. Furthermore, the Commission found that the agreement did not include any provisions that contravened the good faith requirement. Consequently, the Commission approved the ARA Fire Protection Alarms Enterprise Agreement (WA) 2022-2025, deeming it compliant with the necessary statutory standards.

The final orders of the Commission included the approval of the ARA Fire Protection Alarms Enterprise Agreement (WA) 2022-2025, effective from the date of the decision. This approval validated the agreement as a legally binding document between the employer and the employees represented by the AMWU, ensuring that it would govern the employment conditions 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