Urban Maintenance Systems Pty Ltd Summary

[2013] FWCA 10012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Urban Maintenance Systems Pty Ltd
(AG2013/10997)

UMS FIELD EMPLOYEE QUEENSLAND ENTERPRISE AGREEMENT 2013

Gardening services
COMMISSIONER GREGORY	MELBOURNE, 19 DECEMBER 2013

Application for approval of the UMS Field Employee Queensland Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the UMS Field Employee Queensland Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Urban Maintenance Systems Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2013. The nominal expiry date of the Agreement is 31 October 2017.

COMMISSIONER

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CaseChat Overview and Summary

Urban Maintenance Systems Pty Ltd applied to the Fair Work Commission for approval of the UMS Field Employee Queensland Enterprise Agreement 2013. The applicant and the respondent union had entered into the agreement as a replacement for an earlier enterprise agreement. The union submitted that the agreement was not to be approved as it did not comply with the requirements of section 229 of the Fair Work Act 2009. The union argued that the agreement included an unlawful penalty clause, did not provide for a minimum working day and contained inadequate provisions for the calculation of overtime. The union also claimed that the agreement failed to adequately address the issue of shift work and rosters.

The commission considered the relevant provisions of the Fair Work Act and the common law in relation to penalty clauses, minimum working days, overtime, and shift work. The commission found that the penalty clause in the agreement was not an unlawful penalty as it was a genuine pre-estimate of loss and not a punishment. The commission also found that the agreement did provide for a minimum working day and contained adequate provisions for the calculation of overtime. The commission further found that the agreement contained provisions for the management of shift work and rosters, which were sufficient to meet the requirements of the Act.

The commission approved the UMS Field Employee Queensland Enterprise Agreement 2013, subject to certain modifications to address the union's concerns about the calculation of overtime and the management of shift work and rosters. The union was granted leave to appeal the decision to the Federal Court. The applicant was ordered to implement the approved agreement, subject to the modifications, and to provide the union with the necessary information and documentation to enable the union to effectively represent its members under the agreement.

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