Spotless Facility Services Pty Ltd
[2023] FWCA 2125
•11 JULY 2023
| [2023] FWCA 2125 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Spotless Facility Services Pty Ltd
(AG2023/1872)
NATIONAL MAINTENANCE ENTERPRISE AGREEMENT 2023
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 11 JULY 2023 |
Application for approval of the Spotless National Maintenance Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Spotless National Maintenance Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Spotless Facility Services Pty Ltd (Employer). The Agreement is a single-enterprise agreement.
The notification time for the Agreement and the date the Agreement was made precede 6 June 2023. Accordingly, the legislative changes to the Act which commenced on 6 June 2023 do not apply to this Agreement.[1]
The Employer did not provide employees who will be covered by the Agreement with a copy of the five underpinning awards incorporated into the Agreement.[2] Accordingly, I am not satisfied that the Employer took all reasonable steps to ensure that the employees were given a copy of the incorporated materials for the purposes of s 180(2) of the Act. However, on the basis of the written submissions made by the Employer, I am satisfied that:
(a) this constitutes a minor procedural or technical error; and
(b) employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]
I am therefore satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.
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 and other matters 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.
Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Workers’ Union, being bargaining representatives for the Agreement, have each given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the organisations.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 18 July 2023. The nominal expiry date of the Agreement is 31 October 2026.
DEPUTY PRESIDENT
Annexure A
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023. Further, Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023
[2] Manufacturing and Associated Industries and Occupations Award 2020; Electrical, Electronic, and Communications Contracting Award 2020; Plumbing and Fire Sprinklers Award 2020; Building and Construction General On-site Award 2020; Joinery and Building Trades Award 2020
[3] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318
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