Service Stream Maintenance Pty Ltd

[2024] FWCA 3831

[2024] FWCA 3831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Service Stream Maintenance Pty Ltd

(AG2024/3952)

SERVICE STREAM AND AMWU ALTONA AREA ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 1 NOVEMBER 2024

Application for approval of the Service Stream and AMWU Altona Area Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Service Stream and AMWU Altona Area Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Service Stream Maintenance Pty Ltd (Service Stream). The Agreement is a single enterprise agreement. 

Notice of Employee Representational Rights. 

1. The Notice of Employee Representational Rights (NERR) distributed to employees on 27 May 2024 appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act. 

Casual employees.

1. On 31 October 2024 my chambers sent correspondence to the parties outlining an issue regarding the workforce. From the F17B Declaration filed in support of this application, it appeared that of the 21 employees who will be covered by the agreement, 7 were casual. Taking into account the decision of the Full Bench in Appeal by Kmart Australia Limited & Ors[1], and in circumstances where it appeared that 15 employees cast a valid vote in relation to the agreement, and 7 voted against the agreement, I was concerned that if employees voted in the ballot who were not eligible to vote the outcome may have been affected. However, Service Stream confirmed that:

a.There was an error in the F17B Declaration

b.Only 4 casual employees will be covered by the proposed agreement.

c.Only 3 casual employees worked during the access period for the agreement. These employees were included in the ballot. A fourth casual employee was also inadvertently included who should not have been.

d.However, the casual employee who was included in the ballot but should not have been did not cast a vote in the ballot.

e.Accordingly, these matters did not affect the result of the ballot.

1. The Australian Manufacturing Workers Union (AMWU), a bargaining representative for the agreement, was copied into the correspondence provided to chambers containing this information and did not object to it.

2. On the basis of the additional information provided by Service Stream, I am prepared to accept that the inclusion in the ballot of a person not eligible to be included did not affect the outcome, and the other employees involved in the ballot were eligible to be involved.

Interaction with NES 

1. Clause 1.6.6 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:  

2. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:    

a.Clause 2.53.1 of the Agreement provides for the withholding of “any monies due” in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence undertaking will have no effect to the extent of any inconsistency.

Approval  

1. On the basis of the foregoing, 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.  

2. The AMWU 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 AMWU.

3. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2024.

COMMISSIONER

[1] [2019] FWCFB 7599

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