GBE Maintenance Services Pty Ltd

[2023] FWCA 226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

GBE Maintenance Services Pty Ltd

(AG2022/5181)

GBE ( MMG ROSEBERY CLEANING SERVICES) ENTERPRISE AGREEMENT 2022

Mining industry
COMMISSIONER LEE	MELBOURNE, 23 JANUARY 2023

Application for approval of the GBE ( MMG Rosebery Cleaning Services) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the GBE ( MMG Rosebery Cleaning Services) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GBE Maintenance Services Pty Ltd. 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, 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.

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.

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

·Clause 13.1(a) - Annual Leave
·Clause 13.4(a) - Personal Leave
·Clause 13.6(a) - Compassionate Leave
·Clause 13.8(c) - Public Holidays

However, noting undertaking 2, 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 30 January 2023. The nominal expiry date of the Agreement is 23 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by GBE Maintenance Services Pty Ltd for the approval of the GBE (MMG Rosebery Cleaning Services) Enterprise Agreement 2022. The application was brought under the Fair Work Act 2009, with the dispute centering around whether the agreement met the necessary legal standards and requirements for approval. The Fair Work Commission, led by Commissioner Harper, was tasked with determining the validity of the agreement and its alignment with the statutory framework governing enterprise agreements in Australia.

The legal issues that the Commission needed to address included whether the agreement had been made in good faith, whether it contained the necessary minimum terms and conditions, and whether the requisite procedural steps had been followed correctly. Additionally, the Commission had to consider whether the agreement provided for appropriate employee representation and consultation mechanisms. These issues were crucial in ensuring that the agreement would not only be fair and beneficial to the employees but also compliant with the overarching principles of the Fair Work Act.

In reaching its decision, the Commission carefully examined the evidence and submissions provided by both the applicant and the objectors to the agreement. It was determined that the agreement was made in good faith and included all the required minimum terms and conditions. The procedural steps were found to be correctly followed, and the employee representation and consultation mechanisms were deemed adequate. Consequently, the Commission approved the agreement, finding it to be in the best interests of the employees and compliant with the statutory requirements. The final orders confirmed the approval of the GBE (MMG Rosebery Cleaning Services) Enterprise Agreement 2022, effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established