DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2018/7018)

BROADSPECTRUM (AIRTRAIN CUSTOMER SERVICE) ENTERPRISE AGREEMENT 2018 - 2021

Rail industry
COMMISSIONER LEE	MELBOURNE, 14 MARCH 2019

Application for approval of the Broadspectrum (Airtrain Customer Service) Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum (Airtrain Customer Service) Enterprise Agreement 2018 - 2021 (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 T/A Broadspectrum. 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] The Australian Rail, Tram and Bus Union 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.

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

• Clause 21(a) – Personal/carer’s leave

• Clause 22(a) – Compassionate leave

However, noting clause 2(ii) and clause 2(iii) of the undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 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, trading as Broadspectrum, applied for the approval of the Broadspectrum (Airtrain Customer Service) Enterprise Agreement 2018 - 2021. The applicant sought the Fair Work Commission's (FWC) approval of the proposed agreement, which was to govern the terms and conditions of employment for its Airtrain customer service employees. The application was made in accordance with the Fair Work Act 2009.

The legal issues before the FWC centred on whether the proposed agreement complied with the requirements of the Fair Work Act, particularly in relation to the "better off overall test" and whether the agreement was in the interests of the employees. The FWC needed to assess whether the proposed terms and conditions of employment provided employees with a better outcome than they would have achieved under the applicable award or other industrial instrument. The FWC also had to consider whether the agreement provided for fair and reasonable terms and conditions of employment.

In making its decision, the FWC found that the proposed agreement met the better off overall test. The FWC concluded that the agreement provided for terms and conditions of employment that were no worse than those under the applicable award or other industrial instrument and, in some respects, better. The FWC was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the overall benefits to employees, including improved wages and conditions, and the interests of the employer in maintaining efficient operations.

The FWC approved the proposed agreement, finding it to be in the interests of the employees. The FWC's approval was granted on the basis that the agreement provided a better outcome for the employees and was in line with the principles of the Fair Work Act. The FWC made its decision under section 234 of the Fair Work Act, and the approval is effective from the date of the decision.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established