Damday Pty Ltd T/A Australian Airconditioning & Mechanical Services Summary

[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

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.

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.

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).

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.

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.

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.

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

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

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.

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.

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

Printed by authority of the Commonwealth Government Printer

The case involved Damday Pty Ltd, trading as Australian Airconditioning & Mechanical Services, and an employee. The dispute centred on the interpretation and application of the Australian Air-conditioning & Mechanical Services Enterprise Agreement 2024 (the Agreement). The Fair Work Commission was tasked with resolving the issue.

The primary legal issue was whether the Agreement entitled the employee to a particular payment for work performed during a public holiday. The employee argued that the Agreement provided for additional compensation for work done on a public holiday, while the employer contended that no such provision existed. The Commission had to interpret the relevant clauses of the Agreement to determine the correct interpretation.

The Fair Work Commission examined the specific clauses of the Agreement that related to holiday work. It found that the language of the Agreement was clear and unambiguous, indicating that the employee was entitled to the additional payment. The Commission emphasised that the purpose of the Agreement was to provide fair and clear terms for employees, and any ambiguity should be resolved in favour of the employee. Accordingly, the Commission ruled in favour of the employee, determining that the Agreement did provide for the additional payment for work done on a public holiday.

The Commission ordered Damday Pty Ltd to pay the employee the additional compensation for the work performed on the public holiday, along with interest and costs. The decision underscored the importance of clear and precise language in enterprise agreements to avoid disputes and ensure that employees receive the benefits to which they are entitled under the terms of their employment.

Damday Pty Ltd T/A Australian Airconditioning & Mechanical Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established