Programmed Maintenance Services Ltd T/A Programmed Facility Management Pty Ltd

[2024] FWCA 2253

[2024] FWCA 2253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Programmed Maintenance Services Ltd T/A Programmed Facility Management Pty Ltd

(AG2024/1792)

PROGRAMMED FACILITY MANAGEMENT AND MEU ENERGY AUSTRALIA ENTERPRISE BARGAINING AGREEMENT 2024

Building services
COMMISSIONER MIRABELLA	MELBOURNE, 21 JUNE 2024

Application for approval of the Programmed Facility Management and MEU Energy Australia Enterprise Bargaining Agreement 2024.

1. Programmed Maintenance Services Ltd T/A Programmed Facility Management Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Programmed Facility Management and MEU Energy Australia Enterprise Bargaining Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 14 March 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 15 May 2024.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the FW Act, as are relevant to this application for approval, has been met.

1. The notice of employee representational rights (the NERR) provided to employees referenced a different agreement title to the Agreement lodged for approval. Therefore, the NERR was not in its prescribed form. Pursuant to s.188(2) of the FW Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the FW Act.

1. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

·   Clause 9.4.8: Termination of employment

·   Clause 10.1: Maximum weekly hours

·   Clause 14.3: Compassionate leave

·   Clause 14.4: Personal leave

1. However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 21 June 2024 and, in accordance with s.54 of the FW Act, will operate from 28 June 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A