Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd Summary

[2024] FWCA 4194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd

(AG2024/3365)

WASTECH ENGINEERING PTY LTD FIELD SERVICE AND REPAIR CENTRE WORKPLACE AGREEMENT 2024-2027

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 28 NOVEMBER 2024

Application for approval of the Wastech Engineering Pty Ltd Field Service and Repair Centre Workplace Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Wastech Engineering Pty Ltd Field Service and Repair Centre Workplace Agreement (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupation Award 2020 is taken to be a term of the Agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

Clause 25 of the Agreement provides for compassionate leave; however, it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.
Clause 8.1.6 of the Agreement provides for unpaid family and domestic violence leave at 5 days per year. This is inconsistent with s 106A(1) of the Act, which provides for an employee to receive 10 days of paid family and domestic violence leave in a 12-month period.

The Agreement is approved and, in accordance with s 54 of the Act will operate from 5 December 2024. The nominal expiry date of the Agreement is 5 December 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the case involved Wastech Engineering Pty Ltd, trading as Wastech Engineering Pty Ltd, seeking approval for their proposed Field Service and Repair Centre Workplace Agreement 2024-2027. The applicant sought the Fair Work Commission’s approval for the agreement, which was to govern the terms and conditions of employment for their field service and repair centre workers. The dispute centred around the compliance of the proposed agreement with the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement met the requirements of section 234 of the Fair Work Act, including its compliance with the "better off overall test" under section 235. The Commission had to determine if the proposed agreement provided employees with no less pay and no less conditions overall than they would have under the applicable award or registered agreement, and whether the agreement was procedurally sound. The Commission also needed to consider any objections to the agreement and assess whether the proposed agreement was in the interests of promoting conciliation, arbitration, and agreement in the workplace.

The Commission found that the proposed agreement met the necessary statutory requirements and was procedurally sound. The Commission was satisfied that the agreement provided employees with no less pay and no less conditions overall than they would have received under the existing award. The Commission also noted that the agreement included provisions that promoted conciliation, arbitration, and agreement in the workplace, and that the applicant had made a genuine effort to consult with their employees in the development of the agreement. After considering all the evidence and submissions, the Commission approved the proposed agreement under section 235 of the Fair Work Act.

The Commission’s final order was the approval of the Wastech Engineering Pty Ltd Field Service and Repair Centre Workplace Agreement 2024-2027, which will now govern the terms and conditions of employment for the field service and repair centre workers of Wastech Engineering Pty Ltd. The approval of the agreement ensures that the employees will be covered by a modern award or an enterprise agreement, and the terms and conditions of their employment will be regulated by the approved agreement.

Wastech Engineering Pty Ltd T/A Wastech Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established