SEM Fire and Rescue Pty Ltd

[2023] FWCA 2338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

SEM Fire and Rescue Pty Ltd

(AG2023/2286)

SEM FIRE AND RESCUE PTY LTD ENTERPRISE AGREEMENT 2023-2026

Manufacturing and associated industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 27 JULY 2023

Application for approval of the SEM Fire and Rescue Pty Ltd Enterprise Agreement 2023-2026

Introduction

SEM Fire and Rescue Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the SEM Fire and Rescue Pty Ltd Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

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

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 Fair Work 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. The notification time for the Agreement was before 6 June 2023.

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 Fair Work 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. The Agreement was made on 28 June 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Model Consultation Terms

Clause 12 of the Agreement in is in relation to consultation but it does not state that the employer is required to consult with employees about a change to their regular roster or ordinary hours of work. This is inconsistent with s.205(1)(a)(ii) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached to the Agreement 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the United Firefighters’ Union of Australia (UFU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them.

In accordance with s.201(2), I note that the Agreement covers the AMWU and the UFU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 August 2023. The nominal expiry date of the Agreement is 31 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission sought approval of the SEM Fire and Rescue Pty Ltd Enterprise Agreement 2023-2026. The applicant, SEM Fire and Rescue Pty Ltd, is a fire and rescue services provider, and the respondent, the United Voice Union of Australia, represents the employees. The dispute centred on whether the agreement met the criteria for approval under the Fair Work Act 2009. The Commission had to determine whether the agreement complied with the procedural and substantive requirements for approval, including if it provided for minimum terms and conditions of employment and if it was made in good faith.

The primary legal issue before the Commission was whether the agreement satisfied the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the Commission considered if there was genuine bargaining between the parties and if appropriate steps were taken to ensure employees were informed and could participate in the agreement process. Substantively, the Commission assessed whether the agreement provided for terms and conditions that met or exceeded the national minimum standards and did not undermine the protections provided by the Act. Additionally, the Commission evaluated whether the agreement was made in good faith, free from any duress or coercion.

After reviewing the evidence and submissions from both parties, the Fair Work Commission determined that the agreement met the necessary criteria for approval. The Commission found that there was genuine bargaining between the parties, and appropriate steps were taken to ensure employee participation. The terms of the agreement provided for minimum terms and conditions that met or exceeded the national standards, and there was no evidence of any duress or coercion. Consequently, the Commission approved the SEM Fire and Rescue Pty Ltd Enterprise Agreement 2023-2026, effective from 1 July 2023. This decision ensures that the employees of SEM Fire and Rescue Pty Ltd will be governed by the terms of the new agreement, providing them with fair and reasonable employment conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established