DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd
(AG2019/5093)

BROADSPECTRUM WATER SERVICES NSW ENTERPRISE AGREEMENT 2019

Water, sewerage and drainage services
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 FEBRUARY 2020

Application for approval of the Broadspectrum Water Services NSW Enterprise Agreement 2019.

[1] An application has been made for approval of a greenfields agreement known as the Broadspectrum Water Services NSW Enterprise Agreement 2019 (the Agreement). The application was made by Broadspectrum (Australia) Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] 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.

[5] I note that Clauses 17 (b), 23.7, 23.8, 24 and 25 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 3 of the undertaking, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 February 2020. The nominal expiry date of the Agreement is 30 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, an employer, was before the Fair Work Commission in an application to approve the Broadspectrum Water Services NSW Enterprise Agreement 2019. The applicant sought the approval of this enterprise agreement, which was negotiated between the employer and the union, to be binding on the employees. The dispute primarily involved the procedural fairness and the fairness of the agreement itself.

The legal issues before the commission were whether the enterprise agreement had been fairly negotiated and if the application process was conducted in a manner that was procedurally fair. The commission had to determine if there was compliance with the Fair Work Act 2009 and if the agreement met the requirements for good faith bargaining and genuine agreement. Additionally, the commission considered whether the application process itself was fair and if there were any errors in the application that warranted setting it aside.

The commission examined the evidence provided and found that the enterprise agreement was indeed negotiated in good faith and represented a genuine agreement between the parties. It was satisfied that the process leading to the agreement was procedurally fair. The commission noted that while there were some minor procedural issues, these did not undermine the overall fairness of the agreement or the application process. Therefore, the commission approved the Broadspectrum Water Services NSW Enterprise Agreement 2019.

The final orders of the commission were that the Broadspectrum Water Services NSW Enterprise Agreement 2019 be approved as a registered agreement. The commission also directed that the agreement be published on the Fair Work Commission's website to ensure transparency and compliance with the requirements of the Fair Work Act 2009.

Broadspectrum (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established