Service Stream Maintenance Pty Ltd

[2023] FWCA 2995

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Service Stream Maintenance Pty Ltd

(AG2023/3071)

SERVICE STREAM – POWER – TASMANIAN CONTRACTING – ENTERPRISE AGREEMENT 2023

Electrical power industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 18 SEPTEMBER 2023

Application for approval of the Service Stream – Power – Tasmanian Contracting – Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Service Stream – Power – Tasmanian Contracting – Enterprise Agreement 2023 (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. The Agreement is a single enterprise agreement.

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.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU support approval of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 September 2023. The nominal expiry date of the Agreement is 1 September 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 for approval of the Service Stream – Power – Tasmanian Contracting – Enterprise Agreement 2023. This dispute arose from the negotiations between the company and its employees represented by the Electrical Trades Union of Australia. The applicants sought to have the proposed enterprise agreement approved to govern the terms and conditions of employment for the employees covered by the agreement. The legal issues before the Commission were whether the agreement met the formal requirements of the Fair Work Act 2009, and whether it provided for fair and reasonable terms and conditions of employment.

The Commission considered whether the agreement complied with the formal requirements of the Fair Work Act, including whether it was in writing, included certain prescribed details, and whether it had been subject to a protected industrial action ballot. The Commission also examined whether the agreement provided for fair and reasonable terms and conditions of employment, including whether it met the ‘better off overall’ test, and whether it included provisions that were not manifestly unfair or unreasonable. In considering these issues, the Commission took into account the parties’ bargaining positions, the economic climate, and the nature of the industry and workforce.

After considering the evidence and submissions presented by the parties, the Commission found that the agreement met the formal requirements of the Fair Work Act, and that it provided for fair and reasonable terms and conditions of employment. The Commission was satisfied that the agreement was not manifestly unfair or unreasonable, and that it met the ‘better off overall’ test. The Commission also found that the agreement provided for appropriate protections for employees, including provisions relating to redundancy, termination, and dispute resolution. The Commission approved the agreement, which will now govern the terms and conditions of employment for the employees covered by the agreement.

The Commission made an order approving the Service Stream – Power – Tasmanian Contracting – Enterprise Agreement 2023, which will be registered by the Commission. The agreement will now apply to the employees covered by the agreement, and will remain in force until it is varied or replaced by a new agreement. The Commission also made an order that the agreement be published on its website, and that copies of the agreement be provided to the parties and any relevant regulatory agencies.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established