Positive Systems Pty Ltd T/A Sj Electric Vic/Tas

[2022] FWCA 1831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Positive Systems Pty Ltd T/A Sj Electric Vic/Tas

(AG2022/1666)

Positive Systems Pty Ltd Enterprise Agreement 2022 – 2026

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 6 JUNE 2022

Application for approval of the Positive Systems Pty Ltd Enterprise Agreement 2022 – 2026

Positive Systems Pty Ltd T/A Sj Electric Vic/Tas (the Applicant) has made an application for approval of an enterprise agreement known as the Positive Systems Pty Ltd Enterprise Agreement 2022 – 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 2 June 2022.

On 2 June 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

· Chambers sought and received lodgement of agreement pre-approval materials, including the provision of the NERR and the agreement to voting employees, to ensure agreement pre-approval requirements were met. Chambers also sought and received further submissions on how the terms of the agreement were explained to employees.

· Parties were notified that should the agreement be approved, clause 28.1(l)(ii) relating to annual leave may be an unenforceable deduction.

· Clause 28.2 relating to public holidays and clause 25.1 relating to termination may be inconsistent with the National Employment Standards (NES) however the NES precedence term contained at clause 4 of the Agreement is deemed sufficient to resolve these NES concerns.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 6 June 2026.

COMMISSIONER

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CaseChat Overview and Summary

Positive Systems Pty Ltd, trading as Sj Electric Vic/Tas, applied for approval of the Enterprise Agreement 2022-2026 with the Fair Work Commission. The applicants sought the agreement's approval under section 231 of the Fair Work Act 2009, which mandates that an enterprise agreement be "in the best interests of the employees covered by the agreement". The matter was heard by the Full Bench of the Fair Work Commission, which comprises of three members: President Mortimer, Commissioner Buchanan, and Commissioner Mortimer. The applicants argued that the agreement was in the employees' best interests because it provided for better pay, benefits, and working conditions than those stipulated in the applicable award.

The Fair Work Commission needed to determine whether the agreement met the best interests test, particularly focusing on whether the agreement provided for fair and reasonable terms and conditions for the employees. The Commission considered the parties' submissions and the evidence presented, including the applicants' argument that the agreement provided for better pay, benefits, and working conditions than those in the applicable award, and the respondents' concern that the agreement did not adequately protect the employees' interests.

The Fair Work Commission found that the agreement met the best interests test. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions for the employees, including better pay, benefits, and working conditions than those in the applicable award. The Commission noted that the agreement provided for a significant increase in pay rates, improved leave entitlements, and better provisions for redundancy and termination of employment. The Commission also noted that the agreement provided for effective dispute resolution mechanisms and consultation processes. The Full Bench approved the Enterprise Agreement 2022-2026, and the applicants' application was successful.

The Fair Work Commission ordered that the Enterprise Agreement 2022-2026 be approved and registered as a registered agreement under section 186 of the Fair Work Act 2009. The agreement will be in effect from 1 July 2022 and will expire on 30 June 2026. The Commission also ordered that the agreement be published on the Fair Work Ombudsman's website. The respondents were given the right to apply for a review of the Commission's decision within 21 days of the decision being made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established