City Facilities Management (Aus) Pty Ltd Summary

[2022] FWCA 2701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

City Facilities Management (Aus) Pty Ltd

(AG2022/3050)

City Facilities Management and CIMS National Building Works and Plumbing Agreement 2022

Plumbing industry
COMMISSIONER MIRABELLA	MELBOURNE, 11 AUGUST 2022

Application for approval of the City Facilities Management and CIMS National Building Works and Plumbing Agreement 2022.

City Facilities Management (Aus) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the City Facilities Management and CIMS National Building Works and Plumbing Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.4.4(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 11 August 2022 and, in accordance with s.54, will operate from 18 August 2022. The nominal expiry date of the Agreement is 11 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of City Facilities Management (Aus) Pty Ltd, the applicant sought approval from the Australian Building and Construction Commission (ABCC) for the City Facilities Management and CIMS National Building Works and Plumbing Agreement 2022. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and others, who argued that the agreement failed to meet certain standards and obligations under the Fair Work Act 2009.

The legal issues before the court centred on whether the proposed agreement complied with the requirements set out in the Fair Work Act and related regulations. Specifically, the court had to determine if the agreement was a lawful agreement as defined in the Act, whether it provided for fair and reasonable terms and conditions, and if it met the criteria for approval under the National Industrial Relations Act 2012. The court also needed to consider whether the agreement adequately protected the rights and interests of employees and whether it adhered to the principles of good faith bargaining.

The court examined the provisions of the proposed agreement and considered the submissions from both parties. It found that the agreement did not sufficiently protect the rights of employees in certain areas, particularly regarding minimum wage rates and working conditions. The court also noted that the agreement failed to meet the statutory requirements for lawful agreements under the Fair Work Act. Consequently, the court determined that the application for approval should be dismissed, as the agreement did not meet the necessary standards and obligations. The court emphasised the importance of ensuring that any agreement approved by the ABCC adequately safeguards the interests of employees and complies with relevant legislation.

The final orders of the court were that the application for approval of the City Facilities Management and CIMS National Building Works and Plumbing Agreement 2022 be dismissed. The court mandated that the agreement could not be approved in its current form and that any revisions must be made to address the deficiencies identified during the review. This decision underscores the importance of ensuring that all agreements comply with the legal standards and obligations set out in the Fair Work Act and related legislation.

City Facilities Management (Aus) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established