GPS Electrical Services (AUS) Pty Ltd ATF GPS Electrical Services Trust T/A GPS Electrical Services

[2020] FWCA 2861

[2020] FWCA 2861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

GPS Electrical Services (AUS) Pty Ltd ATF GPS Electrical Services Trust T/A GPS Electrical Services
(AG2020/1316)

GPS ELECTRICAL SERVICES (AUS) INSTALLATION STAFF ENTERPRISE AGREEMENT 2020-2024

Electrical power industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 2 JUNE 2020

Application for approval of the GPS Electrical Services (AUS) Installation Staff Enterprise Agreement 2020-2024.

[1] An application has been made for the approval of an enterprise agreement known as the GPS Electrical Services (AUS) Installation Staff Enterprise Agreement 2020-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GPS Electrical Services (AUS) Pty Ltd ATF GPS Electrical Services Trust T/A GPS Electrical Services (GPS Electrical Services). The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of GPS Electrical Services, however, taking into account the factors in s.86(3) and s.186(3A), I am satisfied that the group of employees was fairly chosen.

[3] I note that the table of contents in the Agreement refers to Clause 6.4 as pertaining to Shift Work, whereas in the body of the Agreement it relates to On-Call, Standing By and Recall to Work. Noting that it was and remains the stated intention of GPS Electrical Services that no shift workers will be employed under the Agreement, I will correct the table of contents to amend Clause 6.4 to accurately reflect that it pertains to On-Call, Standing By and Recall to Work, pursuant to s.586 of the Act.

[4] I also note that Clause 5.1.8 of the Agreement provides that in determining any termination payment, GPS Electrical Services may deduct from such final payment any balance of “outstanding monies” owing to it and further, that Clause 8.1.7 of the Agreement provides if an employee fails to give the required notice of termination, GPS Electrical Services may withhold from any “monies” due to the employee an amount not exceeding the amount the employee would have been paid for the period of notice required under Clause 8, less any period of notice actually given by the employee. In my view, these clauses may not be permitted deductions within the meaning of s.324 of the Act if applied in relation to “outstanding monies” or “monies” due that relate to untaken paid annual leave, and pursuant to s.326 of the Act are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement

[5] GPS Electrical Services has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is taken to be a term of the Agreement. I further note that the reference to “shift” in Clause 6.1.4 is to be read in conjunction with Clause 6.1.3.

[6] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[7] The Agreement is approved and, in accordance with s.54(1)(b), will operate from 9 June 2020. The nominal expiry date of the Agreement is 3 June 2024.

DEPUTY PRESIDENT

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<AE508186  PR719816>

Annexure A