DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visionstream Pty Ltd
(AG2014/9564)

VISIONSTREAM PTY LTD FIELDWORK AGREEMENT 2014-2018

Telecommunications services
COMMISSIONER CRIBB	MELBOURNE, 16 DECEMBER 2014

Application for approval of the Visionstream Pty Ltd Fieldwork Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Visionstream Pty Ltd Fieldwork Agreement 2014-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visionstream Pty Ltd. The Agreement is a single-enterprise agreement.

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

[3] In so finding, I have taken into consideration the submissions of a number of parties on various matters.

[4] In relation to the provision in the Agreement relating to long service leave (clause 47.3), a Full Bench of the Commission in Armacell Australia Pty Ltd and Others 1 (Armacell) considered the interaction of enterprise agreements with State and Territory laws in relation to long service leave. At paragraphs 29 and 30 of Armacell, the Bench observed that:

“[29] While s.29(1) provides that as a general rule enterprise agreements prevail over State laws to the extent of any inconsistency, s.29(2) provides an exception in relation to a term of an enterprise agreement which is inconsistent with, relevantly, a law of a State or Territory covered by s.27(1)(c). Section 27(1)(c), as we have already noted, refers to non-excluded matters, one of which is long service leave.

[30] The effect of these provisions is that in the event of inconsistency between a term of an enterprise agreement dealing with long service leave and State long service leave legislation the latter prevails. Accordingly, to the extent that a term in an enterprise agreement purports to permit cashing out of long service leave in circumstances where it would not be permitted under the relevant State legislation, the term is of no legal effect.” [Footnotes omitted]

[5] With respect to this Agreement, it is therefore the case that, where any of the terms of the Agreement in relation to long service leave are inconsistent with State long service leave legislation, the Agreement term is of no legal effect.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[7] The Agreement was approved in Chambers on 16 December 2014 and, in accordance with s.54 of the Act, will operate from 23 December 2014. The nominal expiry date of the Agreement is 22 December 2018.

1 [2010] FWAFB 9985

Printed by authority of the Commonwealth Government Printer

Visionstream Pty Ltd applied to the Fair Work Commission for approval of the Visionstream Pty Ltd Fieldwork Agreement 2014-2018. The applicants were an employer, and the respondents were their employees, represented by a union. The dispute concerned the approval of a workplace agreement under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement was a simple, genuine and fair agreement and whether it complied with the relevant provisions of the Fair Work Act.

The Commission examined the process by which the agreement was negotiated and the terms of the agreement itself. The applicants argued that the agreement was a genuine and fair agreement, negotiated in good faith, and that it met the requirements of the Fair Work Act. The respondents, however, contended that the process was flawed and that the agreement did not provide adequate protections for employees. The Commission considered the evidence presented by both parties and assessed the fairness and genuineness of the agreement. The Commission found that the agreement was a genuine and fair agreement, negotiated in good faith, and that it complied with the relevant provisions of the Fair Work Act. The Commission approved the agreement, subject to certain conditions designed to ensure that the agreement continued to meet the requirements of the Act.

The Commission's decision was based on the evidence presented and its assessment of the agreement's terms and the process by which it was negotiated. The Commission found that the agreement was fair and genuine, and that it met the requirements of the Fair Work Act. The approval of the agreement was subject to certain conditions, designed to ensure that it continued to meet the requirements of the Act. The Commission's decision was final and binding on both parties.

Visionstream Pty Ltd

DECISION

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