DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd
(AG2018/7333)

BROADSPECTRUM AND UFU NSW FIRE AND RESCUE ENTERPRISE AGREEMENT 2018

Fire fighting services
COMMISSIONER LEE	MELBOURNE, 8 FEBRUARY 2019

Application for approval of the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broadspectrum (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[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] 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.

[6] The United Firefighters’ 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.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 38 – Sick leave

• Clause 40 – Carers leave

However, noting undertaking 1, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd applied to the Fair Work Commission for approval of the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018. The UFU NSW, a union, opposed the application on the basis that the agreement did not comply with section 234 of the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the legal requirements for approval.

The central issue before the Commission was whether the agreement satisfied the "no unprotected labour provisions" requirement under section 234(2)(d) of the Fair Work Act. This requirement mandates that an enterprise agreement must not include any provisions that are unprotected labour provisions. The union argued that certain provisions in the agreement constituted unprotected labour provisions, thereby rendering the agreement invalid. Broadspectrum, on the other hand, contended that the provisions in question were not unprotected labour provisions and that the agreement was valid.

The Fair Work Commission found that the provisions in question did not constitute unprotected labour provisions. It held that the provisions were not inconsistent with the criteria set out in section 230 of the Fair Work Act, which defines unprotected labour provisions. The Commission determined that the agreement met all the legal requirements for approval and dismissed the union's objection. Consequently, the Commission approved the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018.

The Fair Work Commission approved the Broadspectrum and UFU NSW Fire and Rescue Enterprise Agreement 2018, finding that it complied with all legal requirements for approval. The union's objection was dismissed, and the agreement was approved as a registered agreement under the Fair Work Act.

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