Programmed Property Services Limited

[2024] FWCA 1850

[2024] FWCA 1850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Programmed Property Services Limited

(AG2024/1548)

PROGRAMMED PROPERTY SERVICES AND CONSTRUCTION FORESTRY AND MARITIME EMPLOYEES UNION REPAINT WORKS AGREEMENT 2023

Building services
COMMISSIONER MIRABELLA	MELBOURNE, 28 MAY 2024

Application for approval of the Programmed Property Services and Construction Forestry and Maritime Employees Union Repaint Works Agreement 2023.

1. Programmed Property Services Limited (the Employer) has made an application for approval of an enterprise agreement known as the Programmed Property Services and Construction Forestry and Maritime Employees Union Repaint Works Agreement 2023 (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) 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. The notification time for the Agreement was 21 July 2023 and the Agreement was made on 30 April 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. 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 and 188, as are relevant to this application for approval, has been met.

1. The Employer issued employees with a notice of employee representational rights that was not in its prescribed form. Pursuant to s.188(5), 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(5) of the Act.

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

• Clause 23.1(d): Public holidays

• Clause 24.3: Compassionate leave

• Clause 27.4: Withholding of monies at termination

1. However, noting clause 7 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 Construction, Forestry and Maritime Employees Union, 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), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 28 May 2024 and, in accordance with s.54, will operate from 4 June 2024. The nominal expiry date of the Agreement is 28 May 2027.

COMMISSIONER

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