DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Air Duct Project Pty Ltd T/A Air Duct Project Pty Ltd
(AG2021/6239)

AIR DUCT PROJECT PTY LTD / AMWU ON-SITE CONSTRUCTION HVAC WORKERS NSWGREENFIELD AGREEMENT 2020 - 2023

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 30 JULY 2021

Application for approval of the Air Duct Project Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Greenfield Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Air Duct Project Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Greenfield Agreement 2020-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Air Duct Project Pty Ltd T/A Air Duct Project Pty Ltd. The agreement is a single enterprise agreement that is a greenfields agreement.

[2] The Agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

[3] In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

[4] Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)” and that the Agreement covers this organisation.

[5] On 22 July 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• The Commission sought a correction to the date of agreement in the Form F20 Application;

• The Commission sought clarification with respect to clause 7 of the Agreement regarding the commencement date;

• Clauses 29.2.2 - Annual leave in advance and 17.3 - Notice of termination by an employee, were inconsistent with the National Employment Standards however this concern is addressed in the effective NES precedence clause at clause 3.4 of the Agreement; and

• Better of overall concerns regarding pay rates for adult apprentices.

[6] The Applicant has submitted an undertaking in the required form dated 28 July 2021. The undertaking deals with the following topics:

• The Applicant clarified the Agreement operating dates, indicating the commencement date is 7 days after the agreement is approved; and

• Confirmed that the Applicant does not employ adult apprentices and will not engage any adult apprentices for the life of the agreement.

[7] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertaking is taken to be a term of the Agreement.

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

[10] I am satisfied that it is in the public interest to approve the Agreement.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 November 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in the case were Air Duct Project Pty Ltd, trading as Air Duct Project Pty Ltd, and the Australian Manufacturing Workers' Union (AMWU). The dispute centred on the approval of the Air Duct Project Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Greenfield Agreement 2020-2023. The matter was heard in the Fair Work Commission.

The legal issues before the Commission were whether the agreement met the necessary standards for approval under the Fair Work Act 2009, including whether it complied with the "better off overall test" (BOOT) and the "no-disadvantage test" (NDT). The AMWU argued that the agreement did not adequately meet these tests and would result in a detriment to employees. Air Duct Project Pty Ltd, on the other hand, contended that the agreement was fair and would benefit employees.

The Commission reviewed the terms of the agreement and considered the economic and non-economic benefits to employees. It determined that the agreement met the BOOT by ensuring employees would be better off overall compared to the applicable award. The Commission also found that the agreement satisfied the NDT, as it did not disadvantage employees in comparison to those not covered by the agreement. The Commission was satisfied that the agreement provided fair and reasonable terms for the employees and approved it accordingly.

The Fair Work Commission approved the Air Duct Project Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Greenfield Agreement 2020-2023. The Commission found that the agreement was in compliance with the Fair Work Act 2009, meeting the better off overall test and the no-disadvantage test. The approval of the agreement was based on the conclusion that it provided fair and reasonable terms for the employees involved.

Air Duct Project Pty Ltd T/A Air Duct Project Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established