Service Stream Maintenance Pty Ltd Summary

[2022] FWCA 1738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Service Stream Maintenance Pty Ltd

(AG2022/1438)

ServiceStream Victorian Transport Infrastructure Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 27 MAY 2022

Application for approval of the ServiceStream Victorian Transport Infrastructure Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the ServiceStream Victorian Transport Infrastructure Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Service Stream Maintenance Pty Ltd. 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. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.

Subject to the undertaking 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clause 6.5.3(b) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the Employer’s provided undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union (AWU), 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) I note that the Agreement covers the organisation.

The Agreement was approved on 27 May 2022 and, in accordance with s.54, will operate from 3 June 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

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 Service Stream Maintenance Pty Ltd to have the ServiceStream Victorian Transport Infrastructure Enterprise Agreement 2022 approved as a modern award. The applicant sought the approval of the agreement to facilitate the terms and conditions of employment for its employees under the new enterprise agreement. The dispute centred around the procedural fairness and the substantive provisions of the agreement.

The legal issues addressed by the Commission included whether the agreement was made in accordance with the relevant provisions of the Fair Work Act 2009, whether the agreement was in the public interest, and whether the agreement provided for fair and reasonable terms and conditions of employment. The Commission also had to consider if the agreement complied with the good faith bargaining requirements and whether the agreement was made without coercion, harassment, or repudiation.

The Commission found that the agreement was made in compliance with the relevant statutory provisions and was in the public interest. The agreement was deemed to provide for fair and reasonable terms and conditions of employment. The Commission was satisfied that the bargaining process was conducted in good faith and without any coercion, harassment, or repudiation. The Commission considered the evidence provided by the parties and the submissions made during the hearing. After examining the provisions of the agreement, the Commission concluded that the agreement met the requirements for approval.

Accordingly, the Fair Work Commission approved the ServiceStream Victorian Transport Infrastructure Enterprise Agreement 2022 as a modern award. This decision ensures that the terms and conditions of employment for employees covered by the agreement are legally recognised and enforceable.

Service Stream Maintenance Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established