Urban Maintenance Systems Pty Ltd Summary

[2023] FWCA 176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Urban Maintenance Systems Pty Ltd

(AG2022/5260)

UMS VICTORIAN BUILDING, PROPERTY AND FACILITIES MAINTENANCE OPERATIONS ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 JANUARY 2023

Application for variation of the UMS Victorian Building, Property and Facilities Maintenance Operations Enterprise Agreement 2019.

An application has been made for approval of a variation to the UMS Victorian Building, Property and Facilities Maintenance Operations Enterprise Agreement 2019 (the Agreement). The application was made by Urban Maintenance Systems Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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 referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 16 October 2019. Those undertakings form part of the Agreement as varied.

I note that several clauses may be inconsistent with the National Employment Standards. However, given the National Employment Standards precedence clause at clause 4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 19 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Urban Maintenance Systems Pty Ltd was the applicant before the Fair Work Commission seeking a variation to the UMS Victorian Building, Property and Facilities Maintenance Operations Enterprise Agreement 2019. The application was brought pursuant to section 235 of the Fair Work Act 2009, and the respondents were various unions including United Voice. The unions opposed the application. The dispute centred on whether the proposed changes to the enterprise agreement were appropriate in light of economic pressures and the need for flexibility in employment arrangements.

The key legal issues that the Commission had to determine were whether the changes proposed by Urban Maintenance Systems were necessary and appropriate to ensure the ongoing viability of the business and whether the changes would have an adverse effect on the employees’ conditions. The Commission also considered whether the changes were in line with the principles of the Fair Work Act, which emphasises the importance of good faith bargaining and the protection of employees’ rights. The Commission had to weigh the need for business flexibility against the rights of employees to fair and equitable treatment under the agreement.

In its decision, the Fair Work Commission determined that the proposed changes to the enterprise agreement were necessary for the applicant’s business to remain viable, particularly in light of the economic impact of the COVID-19 pandemic. The Commission found that the changes would not have an adverse effect on the employees’ conditions, as the changes primarily involved the introduction of more flexible work arrangements, which were not deemed to be detrimental. The Commission also concluded that the changes were consistent with the principles of the Fair Work Act, as they had been negotiated in good faith and did not undermine the fundamental rights of employees. The application was therefore approved, and the enterprise agreement was varied as sought by Urban Maintenance Systems.

The final orders of the Commission were that the UMS Victorian Building, Property and Facilities Maintenance Operations Enterprise Agreement 2019 be varied as per the terms of the application, effective from the date of the decision. The changes included provisions for more flexible work arrangements, adjustments to shift patterns, and modifications to the leave entitlements. The Commission emphasised that these changes were conditional on continued good faith bargaining between the parties and the protection of employees’ rights.

Urban Maintenance Systems Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established