Blue Systems Pty Ltd T/A Blue Fire Systems Summary

[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

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.

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

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.

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.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission (FWC) was for the approval of an enterprise agreement between Blue Systems Pty Ltd and its employees. The applicants, Blue Systems, sought to have the proposed agreement, which covered the period from 2023 to 2027, registered under the Fair Work Act 2009. The dispute involved whether the agreement met the necessary legal standards for approval, particularly focusing on whether it complied with the procedural and substantive fairness requirements set out in the Act. The FWC had to determine if the agreement was fairly negotiated and if it included minimum terms and conditions that were no less favourable than the relevant national workplace determinations.

The primary legal issues the FWC addressed were whether the agreement had been genuinely negotiated between the parties and whether it contained minimum terms and conditions that met the statutory requirements. The FWC also considered whether the agreement included appropriate dispute resolution mechanisms and whether it provided for procedural fairness in its negotiation process. Further, the FWC examined whether the agreement included terms that were contrary to public policy or that unfairly disadvantaged employees.

In delivering its decision, the FWC found that the agreement had been genuinely negotiated and contained terms that were no less favourable than the relevant national workplace determinations. The FWC determined that the agreement included adequate dispute resolution provisions and procedural fairness measures. The FWC also concluded that none of the terms were contrary to public policy or unfairly disadvantaged the employees. Based on these findings, the FWC approved the enterprise agreement, and it was registered under the Fair Work Act 2009. The FWC's decision confirmed the validity and enforceability of the agreement, which would govern the employment conditions between Blue Systems and its employees for the specified period.

Blue Systems Pty Ltd T/A Blue Fire Systems

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established