Eps Corporate Services (Nsw) Pty Ltd

[2023] FWCA 2662

[2023] FWCA 2662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Eps Corporate Services (Nsw) Pty Ltd

(AG2023/2648)

EPS CORPORATE SERVICES (NSW) PTY LTD ENTERPRISE AGREEMENT 2023 – 2027.

Building services
COMMISSIONER CONNOLLY	MELBOURNE, 22 AUGUST 2023

Application for approval of the EPS Corporate Services (NSW) Pty Ltd Enterprise Agreement 2023 – 2027

1. An application has been made for approval of an enterprise agreement known as the EPS Corporate Services (NSW) Pty Ltd Enterprise Agreement 2023 – 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Eps Corporate Services (Nsw) Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 11 August 2023.

1. The notification time for the agreement under s.173(2) of the Act was 2 June 2023 and the Agreement was made on 25 July 2023.  Accordingly, the genuine agreement requirements that are assessed under the Act are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying after 6 June 2023.[1]

1. On 15 August 2023, the Employer was invited to address aspects of the Agreement.

1. In respect of the Notice of Employee Representational Rights (NERR) provided on 2 June 2023, the Employer was technically deficient in potentially failing to notify “all” employees pursuant to the requirements of s.173(1).  Subsequently however, all employees who voted on the Agreement nominated a bargaining representative for the process and from 4 July 2023 “all” employees were provided with a copy of the Agreement. This was voted on by employees on the 25 July 2023 and submitted to the Commission for approval. 

1. On this basis, I am satisfied that s.173(4) applies.  Further, taking into account s.188(2) and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others), I am satisfied that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement within the meaning of s.188(2).

1. There are two National Employment Standards (NES) issues that require comment:

·   Public holiday: Clause 9.9.9 of the Agreement provides that public holidays may be substituted for alternative days by agreement between the company and employees. This appears to be inconsistent with s. 115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee.

·   Compassionate leave: Clause 8.5.3 of the Agreement does not provide compassionate leave for stillbirth and miscarriage consistent with s. 104(1)(b) and (c) of the Act.

1. Clause 3.4.4 of the Agreement acts as an effective NES precedence clause, in that it states that ‘This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency’. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. 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 28 August 2027.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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