Falck (Victoria) Pty Ltd

[2022] FWCA 3797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Falck (Victoria) Pty Ltd

(AG2022/4365)

Falck Fire Protection & Maintenance Services Agreement 2022

Electrical contracting industry
COMMISSIONER O'NEILL	MELBOURNE, 28 OCTOBER 2022

Application for approval of the Falck Fire Protection & Maintenance Services Agreement 2022

Falck (Victoria) Pty Ltd has applied for approval of an enterprise agreement known as the Falck Fire Protection & Maintenance Services Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Notice of Representational Rights (NERR) distributed to employees was not in prescribed form. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

Employees were not notified of the voting details at the start of the access period pursuant to s.180(3) of the Act. Considering that a majority of employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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

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.

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) I note that the Agreement covers the organisations.

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

·   Clause 5.3(h) – Casual Employment;
·   Clause 5.6 - Abandonment of Employment;
·   Clause 13.2(a) – Annual Leave; and
·   Clause 13.7.4 – Adoption Leave.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2022. The nominal expiry date of the Agreement is 1 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Falck (Victoria) Pty Ltd applied to the Supreme Court of Victoria for approval of the Falck Fire Protection & Maintenance Services Agreement 2022. The agreement was to be entered into between Falck and the City of Melbourne, concerning the provision of fire protection and maintenance services. The City of Melbourne, as a local government body, had sought to formalise its arrangements with Falck to ensure compliance with statutory requirements and to provide clarity on the terms and conditions governing the services to be provided. The court was tasked with determining whether the terms of the proposed agreement were fair, reasonable, and in the best interests of the City of Melbourne.

The primary legal issues before the court were whether the terms of the Falck Fire Protection & Maintenance Services Agreement 2022 were fair, reasonable, and in the best interests of the City of Melbourne. The court needed to consider whether the agreement provided a fair and reasonable balance of rights and obligations between the parties and whether it complied with relevant statutory provisions. The court also had to ensure that the agreement did not unfairly disadvantage the City of Melbourne or place it in a position that was not in its best interests.

The court found that the terms of the Falck Fire Protection & Maintenance Services Agreement 2022 were fair, reasonable, and in the best interests of the City of Melbourne. The agreement provided a clear and comprehensive framework for the provision of fire protection and maintenance services, with terms that were balanced and reflective of the respective rights and obligations of the parties. The court was satisfied that the agreement complied with relevant statutory requirements and that it would not unfairly disadvantage the City of Melbourne. Based on these findings, the court approved the agreement and ordered that it be entered into by the parties.

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