FlameSafe Fire Protection Pty Limited

[2024] FWCA 1961

[2024] FWCA 1961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

FlameSafe Fire Protection Pty Limited

(AG2024/1095)

FLAMESAFE FIRE PROTECTION PTY LIMITED FIRE ALARM TECHNICIAN ENTERPRISE AGREEMENT 2023-2026

Electrical, electronic and communications industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 30 MAY 2024

Application for approval of the FlameSafe Fire Protection Pty Limited Fire Alarm Technician Enterprise Agreement 2023-2026

Introduction

1. FlameSafe Fire Protection Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the FlameSafe Fire Protection Pty Limited Fire Alarm Technician Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 3 May 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 25 March 2024.

Regulation 2.06 Requirements

1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Agreement Explanation

1. The Form F17A indicated that on 13 March 2024 an email was issued to employees with the agreement attached. The email was not provided to the Commission, and it was unclear if it also contained any explanatory notes on the terms and effects of the agreement. On 25 March 2024, (the day of the vote) the agreement was discussed, whereby the inclusions of the agreement were explained, and questions were answered. The Employer provided submissions about how the terms and effects of the Agreement were explained and provided the emails given to employees. I am satisfied having regard to those submissions that the requirements of s.180(5) of the Act have been met.

Notification of time, place and method of vote

1. The Form F17A stated that on 13 March 2024 an email was issued to all workers requesting they attend a meeting where the agreement would be explained and then they would have the opportunity to vote. The email was not provided to the Commission, nor information provided as to what information was provided to employees regarding the time, place and method of the vote. The employer subsequently filed the email that was sent to the employees on 13 March 2024. As such, I am satisfied that the requirements of paragraphs 4-6 of the Statement of Principles on Genuine Agreement have been met.

Notice of Employee Representational Rights (NERR)

1. The F17A form indicated that the NERR was initially issued via email on 4 May 2023. However, the email containing the NERR was not submitted to the Commission. Further, it appeared that the NERR was reissued on 6 June 2023, which was more than 14 days after notification time of 3 May 2023. The Employer provided submissions explaining the NERR issuing process, demonstrating that it was issued within the required 14-day timeframe. I am satisfied having regard to those submissions that the requirements of s. 173 of the Act have been met.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model term can be found in Annexure B.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 June 2024. The nominal expiry date of the Agreement is 30 November 2026.

DEPUTY PRESIDENT

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