DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Integrated Maintenance Services Pty Ltd
(AG2019/495)

INTEGRATED MAINTENANCE SERVICES PTY LTD AND ETU ENTERPRISE AGREEMENT 2018 - 2021

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 20 MARCH 2019

Application for approval of the Integrated Maintenance Services Pty Ltd and ETU Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Integrated Maintenance Services Pty Ltd and ETU Enterprise Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Integrated Maintenance Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

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

• Clause 20.1 – Termination of employment

• Clause 4.19 – Support for employees experiencing family and domestic violence

However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 March 2019. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Integrated Maintenance Services Pty Ltd, sought approval of an enterprise agreement with the Electrical Trades Union. The application was heard by the Fair Work Commission (FWC). The agreement aimed to regulate the terms and conditions of employment for certain employees within the company. The union and the employer disputed several aspects of the agreement, including the classification of employees and the provisions related to pay and conditions.

The primary legal issue before the FWC was whether the enterprise agreement was "better off overall" for the employees it covered. The FWC had to examine the proposed agreement against the Fair Work Act 2009 to determine if it met the statutory requirements for approval. Specifically, the FWC had to ensure that the agreement provided a safety net of minimum entitlements and that it did not undermine the safety net by including terms that were less favourable than the applicable awards or the general industrial conditions. The FWC also had to assess whether the agreement was fairly negotiated and if it contained provisions that were procedurally fair and substantively beneficial to the employees.

After a thorough review, the FWC determined that the enterprise agreement did not meet the statutory requirements for approval. The FWC found that several provisions within the agreement were less favourable than the applicable awards or the general industrial conditions, thereby undermining the safety net provided by the Fair Work Act. Additionally, the FWC noted that the agreement contained procedural issues that suggested it was not fairly negotiated. As a result, the FWC refused to approve the enterprise agreement. The decision emphasised the importance of ensuring that enterprise agreements provide fair terms and conditions for employees while maintaining a balance between the rights of employers and employees.

The FWC's decision provided detailed reasons for its refusal to approve the agreement and highlighted the need for the parties to revisit the negotiation process to address the identified issues. The FWC's decision underscores the importance of ensuring that enterprise agreements comply with the statutory requirements and provide fair terms for employees. The final order of the FWC was that the application for approval of the enterprise agreement be refused.

Integrated Maintenance Services 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