ARA Fire Protection Services Pty Ltd

[2022] FWCA 3262

[2022] FWCA 3262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ARA Fire Protection Services Pty Ltd

(AG2022/3795)

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

Fire fighting services
COMMISSIONER O’NEILL	MELBOURNE, 20 SEPTEMBER 2022

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

1. ARA Fire Protection Services Pty Ltd has applied for approval of an enterprise agreement known as the ARA Fire Protection Suppression 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.

1. The Notice of Representational Rights (NERR) distributed to employees was missing the words, “Schedule 2.1—Notice of employee representational rights”, “(regulation 2.05)” and “Fair Work Act 2009, subsection 174(1A)” and also included a website address and contact number. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departures from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Agreement lodged contained an error whereby “ARA” was omitted from the Agreement title. On 16 September 2022, the Employer filed an amended version of the Agreement with the correct title. Pursuant to s.586 of the Act, I am satisfied that the correction should be made and that it is appropriate to do so.

1. The Employer has provided written undertakings. A copy of the undertakings is 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.

1. Subject to the undertakings 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.

1. 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.

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) I note that the Agreement covers the organisation.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 11.2 – Rostered Days Off (RDO’s);

·   Clause 16 – Annual Leave;

·   Clause 18 – Personal Leave; and

·   Clause 19.1 – Compassionate Leave.

However, noting the undertaking given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 September 2022. The nominal expiry date of the Agreement is 1 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE517487  PR745994>

Annexure A

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