Integrated Technology Services Pty Ltd

[2013] FWCA 6125

FAIR WORK COMMISSION

DECISION

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

Integrated Technology Services Pty Ltd
(AG2013/7355)

INTEGRATED TECHNOLOGY SERVICES PTY LTD AND TRANSPORT WORKERS UNION NEW SOUTH WALES ATM TECHNICIANS AGREEMENT 2013

Business equipment industry
COMMISSIONER BULL	SYDNEY, 26 AUGUST 2013

Application for approval of the Integrated Technology Services Pty Ltd and Transport Workers Union New South Wales ATM Technicians Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Integrated Technology Services Pty Ltd and Transport Workers Union New South Wales ATM Technicians Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Agreement at clause 14 - Ordinary hours of work, and in particular, sub clause 14.2 provides for an ordinary span of hours between 06:00am to 23:00pm Monday to Sunday. The Business Equipment Award 2010 (the Award), being the relevant modern award for the application of the better off overall test as per s.193(1) of the Act, provides for an ordinary span of hours between 6:30am to 6:30pm, Monday to Friday, and penalty rates for time worked on a Saturday and Sunday.

[3] The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has provided a number of indicative rosters and advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours. I am satisfied that the increase in the ordinary span of hours satisfies the better off overall test.

[4] The Agreement covers those employees working as ATM Technicians employed by the employer. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[6] The Transport Workers' 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 this organisation.

[7] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 2 September 2013. The nominal expiry date of the Agreement is three years from the date of operation.

COMMISSIONER

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CaseChat Overview and Summary

Integrated Technology Services Pty Ltd recently sought approval for an agreement with the Transport Workers Union New South Wales ATM Technicians. The application was brought before the Fair Work Commission (FWC) to determine if the agreement met the necessary standards and criteria for approval under the Fair Work Act 2009. The Transport Workers Union New South Wales ATM Technicians argued that the proposed agreement did not sufficiently protect employees' interests, particularly in terms of wages and conditions, while Integrated Technology Services Pty Ltd contended that the agreement was fair and necessary to ensure business viability and operational efficiency.

The central legal issues the FWC had to address were whether the agreement complied with the requirements of the Fair Work Act, particularly in terms of procedural fairness and substantive fairness. Procedural fairness required the FWC to consider whether the agreement was genuinely negotiated and whether there were any procedural flaws in the negotiation process. Substantive fairness, on the other hand, required the FWC to examine whether the terms of the agreement were fair and reasonable in the context of the overall labour market and the specific industry.

The FWC found that the agreement had been genuinely negotiated and that there were no procedural flaws. However, the FWC also found that certain terms of the agreement were not fair and reasonable, particularly those relating to wages and conditions. The FWC considered that while the agreement was necessary for business viability, it did not adequately protect employees' interests, particularly in terms of wages and conditions. The FWC ultimately decided to approve the agreement with some modifications to ensure that it met the necessary standards and criteria for approval. The modifications included increasing wages and improving conditions for employees. The FWC also ordered that the parties should continue to negotiate in good faith to address any outstanding issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established