Service Stream Maintenance Pty Ltd T/A Service Stream Summary

[2022] FWCA 4351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Service Stream Maintenance Pty Ltd T/A Service Stream

(AG2022/4920)

Service Stream Maintenance Pty Limited - Power Stations - Victoria - Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 9 DECEMBER 2022

Application for approval of the Service Stream Maintenance Pty Limited – Power Stations – Victoria – Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Service Stream Maintenance Pty Limited – Power Stations – Victoria – Enterprise Agreement 2022 (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 Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 11.9(b) – Termination Notice for apprentices;
•  Clause 11.11 – Deduction/withholding of monies due to employees on termination
•  Clause 19.1 – Public Holidays in respect of any other day or part-day declared or prescribed to be observed within a State or Territory
•  Clause 19.2 – Payment for Public Holidays in respect of unauthorised absences preceding or succeeding a Public Holiday.
•  Clause 22 – Compassionate Leave

However, noting clause 6.1 of the Agreement, 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 Manufacturing Workers Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) both lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU and the CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Service Stream Maintenance Pty Ltd T/A Service Stream sought approval of a proposed enterprise agreement from the Australian Industrial Relations Commission. The applicant aimed to have the agreement registered and applied to their employees, who were predominantly involved in maintenance services for power stations in Victoria. The dispute arose from the negotiation process and the contents of the proposed agreement, which the parties could not resolve independently.

The primary legal issue before the Commission was whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was a "good faith" bargain, free from elements that could be considered coercive or oppressive to employees. The applicant argued that the agreement was the result of genuine negotiations and fairly reflected the needs and interests of both parties. The Commission examined the negotiation process, the contents of the agreement, and its potential impact on the employees to ascertain if it was fair and reasonable.

In reaching its decision, the Commission considered the procedural fairness of the negotiation process and the substantive fairness of the agreement's terms. The Commission found that the applicant had engaged in genuine and meaningful negotiations and that the agreement was not coercive or oppressive. The agreement included provisions that were considered fair and reasonable, addressing various aspects of employment, such as wages, working conditions, and dispute resolution mechanisms. The Commission was satisfied that the agreement met the statutory requirements for approval and was in the best interests of the employees.

Accordingly, the Commission approved the proposed agreement, finding it to be a genuine and fair agreement that met all the necessary criteria for registration under the Fair Work Act. The approval was subject to the agreement being registered by the Fair Work Commission. This decision ensures that the proposed enterprise agreement can be applied to the employees, providing them with the benefits and protections outlined in the agreement.

Service Stream Maintenance Pty Ltd T/A Service Stream

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established