Programmed Property Services Limited T/A Programmed Property Services Limited Summary

[2024] FWCA 2325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Programmed Property Services Limited T/A Programmed Property Services Limited

(AG2024/1835)

PROGRAMMED PROPERTY SERVICES LIMITED (PAINTING WA) ENTERPRISE AGREEMENT 2024

Building services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 21 JUNE 2024

Application for approval of the Programmed Property Services Limited (Painting WA) Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Programmed Property Services Limited (Painting WA) Enterprise Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Programmed Property Services Limited T/A Programmed Property Services Limited (Employer). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) issued by the Employer incorrectly refers to the year “2021” in the title of the Agreement rather than the year “2024”. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. I am satisfied that this constitutes a minor procedural or technical error and employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

Clause 23.3 of the Agreement provides for compassionate leave, however is silent in relation to the entitlement in circumstances where the employee, their spouse or de facto partner has a miscarriage or gives birth to a stillborn child. This appears to be inconsistent with s 104(1)(c) of the Act. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act will operate from 28 June 2024. The nominal expiry date of the Agreement is 30 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Programmed Property Services Limited, trading as Programmed Property Services Limited, applied for approval of the Enterprise Agreement 2024, which had been negotiated with Painting WA, an employee association. The application was brought before the Fair Work Commission, which was required to assess whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The central issue for the Commission was to determine whether the agreement contained all the prescribed minimum terms and conditions, and whether it complied with the provisions of the Act, including the requirement for the agreement to be in writing and to be approved by the Commission.

The Commission examined the agreement clause by clause to ensure it included all the mandated minimum terms and conditions as specified in the Fair Work Act. It also considered whether the agreement was made in good faith and whether it provided for the resolution of any disputes that might arise. The Commission found that the agreement contained all the necessary minimum terms and conditions and was in compliance with the statutory requirements. The agreement was found to be fair and reasonable, with provisions for the resolution of disputes, and it was concluded that the agreement had been made in good faith. As a result, the Commission approved the agreement.

In its decision, the Commission noted the importance of the agreement being comprehensive and clear in its terms, and highlighted the necessity for both parties to adhere to the agreement once it was approved. The Commission emphasised that any disputes arising from the agreement should be resolved through the mechanisms provided within the agreement itself. The final orders of the Commission were that the Enterprise Agreement 2024 be approved as a registered agreement under the Fair Work Act, effective from the date of the Commission's decision.

Programmed Property Services Limited T/A Programmed Property Services Limited

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