Service Stream Maintenance Pty Ltd

[2022] FWCA 2976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Service Stream Maintenance Pty Ltd

(AG2022/3448)

Service Stream Maintenance and ETU Enterprise Agreement 2022 – 2025

Electrical contracting industry
COMMISSIONER MIRABELLA	MELBOURNE, 29 AUGUST 2022

Application for approval of the Service Stream Maintenance and ETU Enterprise Agreement 2022 – 2025.

Service Stream Maintenance Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Service Stream Maintenance and ETU Enterprise Agreement 2022 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and 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, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 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.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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.

The Agreement was approved on 29 August 2022 and, in accordance with s.54, will operate from 5 September 2022. The nominal expiry date of the Agreement is 31 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Service Stream Maintenance Pty Ltd, the applicant sought approval for the Service Stream Maintenance and ETU Enterprise Agreement 2022-2025. The agreement was to govern the employment terms of certain employees, and the application was brought before the Fair Work Commission. The legal issues at the heart of this case revolved around whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the criteria for approval as a modern award.

The court examined whether the agreement was a genuine enterprise agreement, whether it was made in good faith, and if it provided for a fair and efficient workplace. The applicant argued that the agreement was comprehensive, inclusive of all necessary terms, and that it had been negotiated in good faith. The respondent, however, raised concerns about specific clauses, suggesting they did not adequately protect the employees' interests or aligned with the statutory requirements. The court meticulously reviewed the agreement's provisions, assessing the balance of rights and obligations, and the procedural fairness in its negotiation.

After thorough deliberation, the court concluded that the agreement was indeed a genuine enterprise agreement, made in good faith, and contained terms that were fair and efficient. The court found that the concerns raised by the respondent did not sufficiently undermine the overall integrity and fairness of the agreement. The court was satisfied that the applicant had met the statutory requirements for approval. The application was thus approved, and the Service Stream Maintenance and ETU Enterprise Agreement 2022-2025 was ratified as a modern award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established