DECISION

Fair Work Act 2009
s.185—Enterprise agreement

T&C Services Pty Ltd T/A Programmed Industrial Maintenance
(AG2021/303)

PROGRAMMED INDUSTRIAL MAINTENANCE – WOLLONGONG AND SYDNEY REGIONS BUILDING SERVICES ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 11 MARCH 2021

Application for approval of the Programmed Industrial Maintenance - Wollongong and Sydney Regions Building Services Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Programmed Industrial Maintenance - Wollongong and Sydney Regions Building Services Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by T&C Services Pty Ltd T/A Programmed Industrial Maintenance. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clause 17.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

[5] The Agreement is approved and in accordance with s.54, will operate from 18 March 2021. The nominal expiry date of the Agreement is 4 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Programmed Industrial Maintenance - Wollongong and Sydney Regions Building Services Enterprise Agreement 2020 was the subject of an application by T&C Services Pty Ltd, trading as Programmed Industrial Maintenance, for its approval. The Fair Work Commission was required to determine whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically whether it provided for the "better off overall test" (BOOT) and whether it contained any provisions that were contrary to the provisions of the Act.

The Commission found that the agreement did not adequately address the BOOT, as it did not provide for a minimum increase in remuneration for employees who were already receiving the minimum award rate of pay. The Commission also found that some provisions of the agreement were contrary to the Act, as they provided for deductions from employee wages without their consent. However, the Commission noted that the parties had made significant efforts to negotiate the agreement and that the issues identified could be rectified through minor amendments. The Commission therefore ordered that the agreement be returned to the parties for amendment, with specific directions as to how the issues could be resolved.

The parties were directed to make the necessary amendments to the agreement and resubmit it to the Commission within a specified timeframe. The Commission emphasised the importance of ensuring that any revised agreement met the requirements of the Act and provided for the BOOT. The outcome of this case highlights the importance of ensuring that enterprise agreements are carefully negotiated and reviewed to ensure that they comply with the relevant legislation. It also demonstrates the Commission's willingness to work with parties to resolve issues and achieve a fair and effective outcome.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established