Damday Pty Ltd T/A Australian Airconditioning & Mechanical Services

[2024] FWCA 3569

[2024] FWCA 3569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Damday Pty Ltd T/A Australian Airconditioning & Mechanical Services

(AG2024/3518)

AUSTRALIAN AIR-CONDITIONING & MECHANICAL SERVICES ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 10 OCTOBER 2024

Australian Air-conditioning & Mechanical Services Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Australian Air-conditioning & Mechanical Services Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement does not contain a workplace delegates’ rights term as required by s 205A(1) of the Act. Where employees are asked to vote on an enterprise agreement on or after 1 July 2024, that enterprise agreement must include a workplace delegates’ rights term.

1. Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

1. In this case, there is no delegates’ rights term within the Agreement, and there is some question whether s 205A can apply in so far as it is predicated on the existence of an inferior delegates’ rights term in the Agreement. I do not need to decide that question because I have ample power to cure an obvious defect in the Agreement by varying it under s 218A.

1. Section 218A(1) allows the Commission to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied I have power under s 218A to amend the Agreement by inserting the most favourable delegates’ rights term of the relevant Awards.

1. There are two underpinning awards, the Manufacturing and Associated Industries and Occupations Award 2020 and the Clerks Private Sector Award 2020. The delegates’ rights terms are at clauses 40A and 37A respectively. There is no material difference between those two clauses. In those circumstances, one is not more favourable than the other and I have chosen to insert clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020.

1. The variation pursuant to s 218A will operate from 17 October 2024.

1. I note that the following provisions may be inconsistent with the National Employment Standards:

   ·   Clauses 21.6, 22.1.1, 55.7 – Deduction or withholding of monies due under the NES on termination

   ·   Clause 47 – Compassionate Leave

   ·   Clause 57 – Abandonment of employment

1. However, noting clauses 7.1 and 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement. 

1. I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Agreement is approved today 10 October 2024. It will operate from 17 October 2024 as required by section 54 of the Act. The nominal expiry date is 10 October 2026.

COMMISSIONER

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