DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sterling Fire Services Pty Ltd
(AG2017/2297)

STERLING MAINTENANCE SERVICES PTY LTD ENTERPRISE AGREEMENT 2016 - 2020

Electrical contracting industry
COMMISSIONER GREGORY	MELBOURNE, 29 JUNE 2017

Application for approval of the Sterling Maintenance Services Pty Ltd Enterprise Agreement 2016 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Sterling Maintenance Services Pty Ltd Enterprise Agreement 2016 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sterling Fire Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2017. The nominal expiry date of the Agreement is 28 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Sterling Fire Services Pty Ltd applied to the Fair Work Commission for approval of the Sterling Maintenance Services Pty Ltd Enterprise Agreement 2016-2020. The agreement was intended to cover employees of Sterling Maintenance Services Pty Ltd who were also employees of Sterling Fire Services Pty Ltd. The application for approval was contested by a union representing some of the employees. The union argued that the agreement did not meet the requirements of the Fair Work Act 2009 because it did not include a clause that would protect employees' wages and conditions if Sterling Maintenance Services Pty Ltd were to be acquired by another entity.

The central legal issue before the Commission was whether the agreement satisfied the requirements of section 234 of the Fair Work Act 2009. This section requires that an enterprise agreement must include a "protector" clause if the agreement covers employees who are employed by one entity but work for another. The Commission found that the agreement did not include such a clause. However, the Commission also found that the union had not provided sufficient evidence to demonstrate that the agreement would result in a detriment to employees if Sterling Maintenance Services Pty Ltd were to be acquired by another entity. The Commission therefore approved the agreement.

The Fair Work Commission approved the Sterling Maintenance Services Pty Ltd Enterprise Agreement 2016-2020, despite the absence of a protector clause. The Commission found that the union had not provided sufficient evidence to demonstrate that the agreement would result in a detriment to employees if Sterling Maintenance Services Pty Ltd were to be acquired by another entity. The Commission noted that the agreement did provide for the protection of employees' wages and conditions in the event of acquisition, albeit through a different mechanism than a protector clause. The Commission concluded that the agreement met the requirements of the Fair Work Act 2009 and approved it.

Sterling Fire Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established