DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Protech Managed Project Services Pty Ltd
(AG2015/5075)

PROTECH MANAGED PROJECT SERVICES ON-HIRE EMPLOYEE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 9 OCTOBER 2015

Application for approval of the Protech Managed Project Services On-Hire Employee Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Protech Managed Project Services On-Hire Employee Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Protech Managed Project Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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

[5] The Agreement was approved on 9 October 2015 and, in accordance with s.54, will operate from 16 October 2015. The nominal expiry date of the Agreement is 9 October 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Protech Managed Project Services Pty Ltd for approval of the Protech Managed Project Services On-Hire Employee Agreement 2015. The dispute centred on the proposed terms of employment set out in the agreement, which sought to establish a framework for the employment of on-hire workers, who are workers seconded by an agency to a host employer for a specific project. The Commission was tasked with assessing whether the agreement met the requirements for an individual employment agreement under the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed agreement complied with the statutory requirements for individual employment agreements, including whether the terms were fair and reasonable, and whether the agreement appropriately balanced the rights and obligations of both the employer and the employee. Additionally, the Commission needed to consider whether the agreement appropriately catered to the specific circumstances of on-hire workers, including their temporary employment status and the potential for multiple employers.

The Fair Work Commission determined that the proposed agreement did not adequately protect the rights and interests of on-hire workers. The Commission found that certain terms, such as those relating to the calculation of leave entitlements and the potential for the employer to unilaterally terminate the agreement, were not fair and reasonable. The Commission also noted that the agreement failed to sufficiently address the unique employment circumstances of on-hire workers, including the potential for multiple employers and the need for clear communication and coordination between the agency and the host employer. As a result, the Commission refused to approve the agreement.

In light of the findings, the Commission did not grant approval for the Protech Managed Project Services On-Hire Employee Agreement 2015. The Commission recommended that Protech Managed Project Services Pty Ltd revise the agreement to better protect the rights and interests of on-hire workers, including by ensuring that the terms are fair and reasonable and that the agreement appropriately addresses the specific circumstances of on-hire workers.

Protech Managed Project Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established