B & L Mechanical Air Services Pty Ltd Summary

[2023] FWCA 162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

B & L Mechanical Air Services Pty Ltd

(AG2022/5411)

B & L MECHANICAL AIR SERVICES PTY LTD / AMWU ON-SITE CONSTRUCTION HVAC WORKERS NSW ENTERPRISE AGREEMENT 2022 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 18 JANUARY 2023

Application for approval of the B & L Mechanical Air Services Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2022 - 2023

An application has been made for approval of an enterprise agreement known as the B & L Mechanical Air Services Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2022 - 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 25 January 2023. The nominal expiry date of the Agreement is 30 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of the B & L Mechanical Air Services Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2022-2023. The application was brought before the Fair Work Commission, which was required to assess whether the agreement met the necessary criteria under the Fair Work Act 2009. The Australian Manufacturing Workers' Union (AMWU) and B & L Mechanical Air Services Pty Ltd were the primary parties involved in the application. The dispute centred on the terms and conditions of employment for HVAC workers within the on-site construction industry, and whether the proposed enterprise agreement would provide fair and reasonable terms for both employers and employees.

The legal issues before the Commission included whether the proposed agreement provided for the "better off overall test" (BOOT), ensuring that employees were not worse off financially under the new agreement. Additionally, the Commission had to consider whether the agreement complied with the procedural requirements of the Fair Work Act, including the requirement for genuine bargaining and the need for the agreement to cover a genuine enterprise. The Commission also had to ensure that the agreement did not include any provisions that would contravene the provisions of the National Employment Standards (NES) or other applicable industrial instruments.

The Fair Work Commission determined that the proposed enterprise agreement met the necessary criteria for approval. The Commission found that the agreement provided for the better off overall test, as the new terms and conditions of employment resulted in improved financial outcomes for the employees. The Commission also found that the agreement had been genuinely bargained and covered a genuine enterprise. Furthermore, the Commission confirmed that the agreement did not include any provisions that would contravene the NES or other applicable industrial instruments. Consequently, the Commission approved the B & L Mechanical Air Services Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2022-2023, and it came into effect on the date of the Commission's decision.

The Fair Work Commission ordered that the B & L Mechanical Air Services Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2022-2023 be approved and registered under the Fair Work Act 2009. The agreement was to be in effect from the date of the Commission's decision and would apply to all relevant employees and employers within the specified enterprise. The Commission's decision provided clarity and certainty for both parties involved, ensuring that the agreement provided fair and reasonable terms for all employees within the on-site construction HVAC industry.

B & L Mechanical Air Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established