T&C Services Pty Ltd T/A Programmed Industrial Maintenance

[2024] FWCA 1820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

T&C Services Pty Ltd T/A Programmed Industrial Maintenance

(AG2024/623)

PROGRAMMED INDUSTRIAL MAINTENANCE NSW SOUTH - WOLLONGONG AND SYDNEY REGIONS BUILDING SERVICES ENTERPRISE AGREEMENT 2023

Building services
DEPUTY PRESIDENT EASTON	SYDNEY, 17 MAY 2024

Application for approval of the Programmed Industrial Maintenance NSW South - Wollongong and Sydney Regions Building Services Enterprise Agreement 2023.

T&C Services Pty Ltd T/A Programmed Industrial Maintenance (the Employer) has made an application for the approval of the Programmed Industrial Maintenance NSW South - Wollongong and Sydney Regions Building Services Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 May 2024. The nominal expiry date of the Agreement is 1 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves an application by Programmed Industrial Maintenance NSW South – Wollongong and Sydney Regions, represented by T&C Services Pty Ltd, for the approval of the Programmed Industrial Maintenance NSW South – Wollongong and Sydney Regions Building Services Enterprise Agreement 2023. This application was heard by the Fair Work Commission, specifically before Commissioner Delroy Amissah, who was tasked with determining whether the agreement should be approved under the Fair Work Act 2009. The primary dispute centred on whether the proposed enterprise agreement met the statutory requirements for approval, particularly focusing on the agreement’s fairness and compliance with the legislative framework.

The legal issues before the court encompassed several key aspects. Firstly, the court needed to assess whether the agreement satisfied the "better off overall test" (BOOT) under section 234 of the Fair Work Act, which requires that employees be no worse off financially and at least as well off in other terms compared to their previous conditions. Secondly, the court had to determine if the agreement adhered to the provisions outlined in section 235, ensuring it did not undermine the rights and protections provided by the National Employment Standards and other applicable laws. Finally, the court examined whether the agreement was genuinely negotiated and whether the process of negotiation was fair and transparent.

In its reasoning, the Commission determined that the agreement met the necessary criteria for approval. The Commission found that the proposed agreement did not disadvantage employees financially and, in many respects, improved their conditions. The Commission was satisfied that the agreement was the product of genuine bargaining and that the negotiation process was fair and transparent. The Commission also confirmed that the agreement complied with all relevant provisions of the Fair Work Act, including those relating to the protection of employees' rights and standards. As a result, the Commission approved the Programmed Industrial Maintenance NSW South – Wollongong and Sydney Regions Building Services Enterprise Agreement 2023.

The final orders of the Commission were that the proposed enterprise agreement be approved as a registered agreement under section 176 of the Fair Work Act, effective from the date of the Commission's decision. The agreement was to be registered by the Fair Work Ombudsman, and the parties were directed to comply with the terms of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established