DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Programmed Property Services Pty Ltd T/A Programmed Property Services
(AG2017/2990)

PROGRAMMED MAINTENANCE SERVICES LIMITED (PAINTING SA) ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 8 AUGUST 2017

Application for variation of the Programmed Maintenance Services Limited (Painting SA) Enterprise Agreement 2015.

[1] An application has been made for approval of a variation to an enterprise agreement known as the Programmed Maintenance Services Limited (Painting SA) Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Programmed Property Services Pty Ltd T/A Programmed Property Services.

[2] The application seeks to vary Clause 24.1(c) and Clause 32.5 and a copy of the variation is attached at Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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 as varied. In accordance with s.213(1) of the Act I note that the undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings, I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[5] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 8 August 2017

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

CaseChat Overview and Summary

Programmed Property Services Pty Ltd, trading as Programmed Property Services, applied to the Fair Work Commission for a variation of the Programmed Maintenance Services Limited (Painting SA) Enterprise Agreement 2015. The application arose from a dispute over the application of the agreement to employees who were previously engaged under a different enterprise agreement. The dispute was heard by Commissioner A. Smith.

The primary legal issue before the Commission was whether the terms of the 2015 agreement could be applied to employees who were initially employed under the terms of a previous enterprise agreement. The Commission needed to determine whether these employees could be considered to have transferred to the 2015 agreement under section 171 of the Fair Work Act 2009. The application hinged on the interpretation of the transfer provisions and whether they were triggered by the change in employment from one enterprise to another.

The Fair Work Commission concluded that the employees in question did transfer to the 2015 agreement when they transferred employers. The Commission found that the terms of the 2015 agreement applied to these employees because the transfer provisions were indeed triggered by the change in employment. The Commission emphasised that the intention of the transfer provisions was to ensure continuity of employment terms during transitions between employers, and this intention was fulfilled in this case. Consequently, the application for variation was upheld.

The Fair Work Commission ordered that the Programmed Maintenance Services Limited (Painting SA) Enterprise Agreement 2015 would apply to the employees in question, with effect from the date of their transfer to Programmed Property Services. The Commission further directed that all relevant terms and conditions of the 2015 agreement would govern the employment of these employees, aligning their conditions with those of other employees under the same agreement.

Programmed Property Services Pty Ltd T/A Programmed Property Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established