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

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicants, GPS Electrical Services (AUS) Pty Ltd and GPS Electrical Services (AUS) Installation Staff Enterprise Agreement 2020-2024, sought approval of the agreement from the Fair Work Commission. The application was opposed by the Electrical Trades Union (Metropolitan) NSW. The matter was heard in the Fair Work Commission, which was required to determine whether the agreement was in the interests of the employees covered by the agreement. The dispute centred on several provisions of the proposed agreement, including the classification of employees, the calculation of penalty rates, and the terms and conditions of employment.

The Commission considered the arguments presented by both parties and examined the evidence provided. The Commission found that the agreement was in the interests of the employees, despite the opposition from the union. The Commission noted that the agreement provided for a fair and reasonable set of terms and conditions for the employees, including provisions for overtime and penalty rates, and that the classification of employees was appropriate. The Commission also found that the agreement provided for a fair and reasonable process for the resolution of disputes between the employer and employees.

The Commission approved the proposed agreement, subject to certain modifications to address the concerns raised by the union. The modifications included the addition of provisions for the resolution of disputes between the employer and employees, and the establishment of a committee to review the agreement annually. The Commission noted that these modifications would ensure that the agreement continued to be in the interests of the employees. The Commission made orders approving the agreement, subject to the modifications.

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

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established