Blue Systems Pty Ltd T/A Blue Fire Systems

[2023] FWCA 1104

[2023] FWCA 1104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Blue Systems Pty Ltd T/A Blue Fire Systems

(AG2023/892)

BLUE SYSTEMS PTY LTD ENTERPRISE AGREEMENT 2023 - 2027

Miscellaneous
COMMISSIONER PLATT	ADELAIDE, 18 APRIL 2023

Application for approval of the Blue Systems Pty Ltd Enterprise Agreement 2023 - 2027

1. An application has been made for approval of an enterprise agreement known as the Blue Systems Pty Ltd Enterprise Agreement 2023 - 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Blue Systems Pty Ltd T/A Blue Fire Systems (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 6 April 2023.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Notice of Termination – Withholding Moneys: Clause 9.1.6 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold ‘wages and/or entitlements’ due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment and is inconsistent with s.324 of the Act.

1. Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that “Where the NES provides, or is varied to provide, a benefit or condition or entitlement more favourable in a particular respect than that contained in this Agreement, the benefit or condition or entitlement contained in this Agreement shall be overridden to the extent of any less favourable inconsistency with the NES”. As a result of the NES precedence clause, the above clause will not apply to the extent that they are inconsistent with the NES.

1. In addition, the Applicant has submitted an undertaking in the required form dated 13 April 2023. The undertaking deals with the following topics:

·   The Applicant undertakes, despite clause 7.2.8 of the Agreement, to abide by section 324 of the Act in relation to permitted deductions.

·        Despite the provision of Clause 9.1.6. the Applicant undertakes to abide by the NES precedence provision contained in clause 6 of the Agreement.

·        The Applicant undertakes to pay apprentices and trainees according to the relevant clauses in the Electrical, Electronic and Communications Contracting Award 2010 (the Award). The Applicant also undertakes to pay apprentices and trainees the greater value in wage increases found in Schedule B of the Agreement or increase in wage rates following each annual Wage Review of the Award.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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

1. 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 24 April 2027.

COMMISSIONER

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