DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Falck (Victoria) Pty Ltd
(AG2017/6343)

FALCK FIRE PROTECTION & MAINTENANCE SERVICES AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 MARCH 2018

Application for approval of the Falck Fire Protection & Maintenance Services Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Falck Fire Protection & Maintenance Services Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Falck (Victoria) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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] The Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 March 2018. The nominal expiry date of the Agreement is 1 October 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Falck (Victoria) Pty Ltd applied to the Supreme Court of Victoria for approval of the Falck Fire Protection & Maintenance Services Agreement 2017. The applicant sought approval of the agreement under section 145 of the Building Act 1993, which requires that fire protection services agreements be approved by the court. The dispute arose because the respondent, the Building Commission, opposed the approval of the agreement on the basis that it did not adequately address issues of transparency and competition. The applicant argued that the agreement provided for appropriate transparency and competition in the provision of fire protection services.

The legal issues before the court were whether the agreement complied with the statutory requirements for transparency and competition, and whether it provided for adequate oversight and enforcement mechanisms. The court considered the relevant statutory provisions and case law on the approval of fire protection services agreements. The court also examined the content of the agreement and the submissions of the parties. The court found that the agreement did not adequately address issues of transparency and competition, and that it did not provide for adequate oversight and enforcement mechanisms. The court also found that the applicant had not demonstrated that the agreement was in the public interest.

The court refused to approve the agreement, finding that it did not meet the statutory requirements for transparency and competition. The court noted that the agreement did not provide for adequate mechanisms to ensure that fire protection services were provided in a transparent and competitive manner, and that there was a risk that the agreement would lead to anti-competitive practices. The court also found that the agreement did not provide for adequate oversight and enforcement mechanisms, which were necessary to ensure that the agreement was complied with and that fire protection services were provided in accordance with the agreement. The court noted that the Building Commission had a responsibility to ensure that fire protection services were provided in a safe and effective manner, and that the agreement did not provide for adequate mechanisms to ensure that this responsibility was met.

The court refused to approve the Falck Fire Protection & Maintenance Services Agreement 2017. The court ordered that the application be dismissed with costs to the Building Commission. The court noted that the agreement did not meet the statutory requirements for transparency and competition, and that it did not provide for adequate oversight and enforcement mechanisms. The court also noted that the applicant had not demonstrated that the agreement was in the public interest. The court emphasised the importance of ensuring that fire protection services were provided in a transparent and competitive manner, and that there were adequate mechanisms in place to ensure that this was the case.

Falck (Victoria) 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