DNM Engineering Pty Ltd
[2024] FWCA 4601
•19 DECEMBER 2024
| [2024] FWCA 4601 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.216DA - Application by an employer for approval of a variation of a single interest employer agreement to add employer and employees
DNM Engineering Pty Ltd
(B2024/1522)
NSW Indigenous Mechanical Air Services
(B2024/1523)
Commercial Installations Pty Ltd
(B2024/1611)
AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2023 – 2027
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 19 DECEMBER 2024 |
Application for variation of the AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2023 – 2027
This matter concerns three applications to vary the AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2023 – 2027 (HVAC Agreement) to add the respective employers, and their relevant employees, to its coverage. The applications have been made under s.216DA of the Fair Work Act 2009 (Act). The employers seeking to be added (applicant employers) are:
· DNM Engineering Pty Ltd;
· NSW Indigenous Mechanical Air Services; and
· Commercial Installations Pty Ltd.
I have heard the applications together for convenience. However, each has been considered in its own context having regard to the relevant supporting evidence.
The HVAC Agreement was approved[1] by the Commission on 14 June 2024. It is a multi-employer agreement which was made involving 8 employers in consequence of a single interest employer authorisation[2] issued by the Commission on 13 February 2024. The employers concerned all operate in the heating, ventilation and air conditioning (HVAC) industry. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is also covered by the Agreement and is representing parties in these applications.
The HVAC Agreement has a nominal life until 30 November 2027.
The applicant employers have brought the applications on the basis that they are ‘common interest’ employers and it is has been agreed with their employees that they should be covered by the HVAC Agreement. The applicant employers are not franchisees or related businesses. Although it is not significant in this matter, none of the employers employ 50 or more employees. The applications are supported by the AMWU.
The variations have no effect unless approved by the Commission.[3]
The hearing in this matter was conducted on 18 December 2024. During the hearing I heard directly from each of the applicant employers, the AMWU and the HVAC Manufacturing and Installation Association. All parties and the Association confirmed their full support for the applications and the approval of the variations.
At the conclusion of the hearing, I advised the parties that I would approve the variations sought. My reasons for doing so are set out below.
The directly relevant provisions of the Act are as follows:
“216D Variation of single interest employer agreement to add employer and employees—joint variation
Variation by employers and employees
(1)The following may jointly make a variation of a single interest employer agreement that will have the effect that they will be covered by the agreement:
(a)an employer that is not covered by the agreement;
(b)the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).
Variation has no effect unless approved by the FWC
(2)The variation has no effect unless it is approved by the FWC under section 216DC.
Approval by employee vote
(3)The employer may request the affected employees to approve the proposed variation by voting for it.
(4)Without limiting subsection (3), the employer may request that the affected employees vote by ballot or by an electronic method.
When a variation is made
(5)A variation under this section is made when a majority of the affected employees who cast a valid vote approve the variation.
216DAA Terms of variation must be explained to employees
(1)Before an employer requests under subsection 216D(3) that affected employees approve a proposed variation, the employer must take all reasonable steps to ensure that:
(a)the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees; and
(b)the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.
(2)Without limiting paragraph (1)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a)employees from culturally and linguistically diverse backgrounds;
(b)young employees;
(c)employees who did not have a representative for the variation.
216DA Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—joint variation
Application for approval
(1)If a variation of a single interest employer agreement is made under section 216D, the employer to be covered by the agreement must apply to the FWC for approval of the variation.
Material to accompany the application
(2)The application must be accompanied by:
(a)a signed copy of the variation; and
(b)a copy of the agreement as proposed to be varied; and
(c)any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3)The application must be made:
(a)within 14 days after the variation is made; or
(b)if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
Signature requirements
(4)The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements made under section 216D.
216DB Application for the FWC’s approval of a variation of a single interest employer agreement to add employer and employees—application by employee organisation
Application for approval
(1)An employee organisation that is covered by a single interest employer agreement may apply to the FWC for the approval of a variation of the agreement that will have the effect that the following will be covered by the agreement:
(a)an employer that is not covered by the agreement;
(b)the employees employed by the employer at the time who will be covered by the agreement if the variation is approved by the FWC (the affected employees).
Material to accompany the application
(2)The application must be accompanied by:
(a)a signed copy of the variation for which approval is sought; and
(b)a copy of the agreement as proposed to be varied; and
(c)any declarations that are required by the procedural rules to accompany the application.
Signature requirements
(3)The regulations may prescribe requirements relating to the signing of variations of single interest employer agreements for which approval is sought under this section.
216DC When the FWC must approve a variation of a single interest employer agreement to add employer and employees
Approval of variation by the FWC
(1)The FWC must approve a variation of a single interest employer agreement if:
(a)an application for approval of the variation has been made under section 216DA or 216DB; and
(b)the FWC is satisfied that:
(i)the employers and any employee organisations covered by the agreement have had an opportunity to express to the FWC their views (if any) on the application; and
(ii)if the application was made by an employer under section 216DA—the variation has been genuinely agreed to by the affected employees in accordance with section 216DD; and
(iii)if the application was made by an employee organisation under section 216DB—the requirements of subsection (1A) are met; and
(iv)the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and
(v)if the requirements of subsection (3) are met—the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.
(1AA)If:
(a)the application for approval of the variation was made by an employee organisation under section 216DB; and
(b)the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed for the purposes of subparagraph (1)(b)(v) that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is proved.
Additional requirements for application by employee organisation
(1A)The requirements of this subsection are met if:
(a)the employer that will be covered by the agreement employed at least 20 employees at the time that the application for approval of the variation was made; and
(b)a majority of the affected employees want to be covered by the agreement; and
(c)subsection (1C) does not apply to the employer.
(1B)For the purposes of paragraph (1A)(b), the FWC may work out whether a majority of the affected employees want to be covered by the agreement using any method the FWC considers appropriate.
(1C)This subsection applies to an employer if:
(a)the employer and the affected employees are covered by another enterprise agreement that has not passed its nominal expiry date at the time that the FWC will approve the variation; or
(b)the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the affected employees have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and the affected employees or substantially the same group of the affected employees.
Franchisees
(2)The requirements of this subsection are met if the employers covered by the agreement and the employer that will be covered by the agreement carry on similar business activities under the same franchise and are:
(a)franchisees of the same franchisor; or
(b)related bodies corporate of the same franchisor; or
(c)any combination of the above.
Common interest employers
(3)The requirements of this subsection are met if it is appropriate to approve the variation, having regard to:
(a)whether the employers covered by the agreement and the employer that will be covered by the agreement have clearly identifiable common interests; and
(b)whether it would be contrary to the public interest to approve the variation.
(3A)For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:
(a)geographical location;
(b)regulatory regime;
(c)the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.
(3AB)If:
(a)the application for approval of the variation was made by an employee organisation under section 216DB; and
(b)the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met, unless the contrary is proved.
Calculating number of employees
(3AC)For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1A)(a) or (3AB)(b):
(a)employee has its ordinary meaning; and
(b)subject to paragraph (c), all employees employed by the employer at the time that the application was made are to be counted; and
(c)a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d)associated entities of the employer are taken to be one entity.
Employers and employees that are already bargaining
(3B)Despite subsection (1), the FWC may refuse to approve the variation if the FWC is satisfied that:
(a)the employer is bargaining in good faith for a proposed enterprise agreement that will cover the employer and the affected employees, or substantially the same group of the affected employees; and
(b)the employer and the affected employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employer and the affected employees, or substantially the same group of the affected employees; and
(c)on the day that the FWC will approve the variation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).
General building and construction work
(4)Despite subsection (1), the FWC must not approve the variation if:
(a)the agreement is a greenfields agreement that covers employees in relation to general building and construction work; or
(b)as a result of the variation, the agreement would cover employees in relation to general building and construction work.
Supported bargaining authorisation
(5)Despite subsection (1), the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation in relation to any of the affected employees.
216DD Determining whether a variation of a single interest employer agreement to add employer and employees has been genuinely agreed to by affected employees
(1)For the purposes of subparagraph 216DC(1)(b)(ii), the FWC is to determine whether it is satisfied that the variation has been genuinely agreed to by the affected employees in accordance with section 188, modified as follows:
(a)as if references (other than in a note) to an enterprise agreement being genuinely agreed to were references to the variation being genuinely agreed to;
(b)as if references to employees covered by or expressed to be covered by the agreement, employees requested to approve the agreement by voting for it, or employees, were references to the affected employees;
(c)as if, in paragraph 188(2)(a), the reference to the agreement were a reference to the agreement as proposed to be varied;
(d)as if subsections 188(2A), (3) and (4) were omitted;
(e)as if, in subsections 188(4A) and (5), references to subsection 180(5) were references to section 216DAA;
(f)as if, in paragraph 188(5)(c), the reference to subsection 182(1) or (2) were a reference to subsection 216D(5).
(2)In taking into account the statement of principles made under section 188B:
(a)the FWC may disregard the matters mentioned in paragraphs 188B(3)(a) and (b); and
(b)the matters mentioned in paragraphs 188B(3)(c) and (d) are taken to be matters relating to the agreement as proposed to be varied; and
(c)the matters mentioned in paragraphs 188B(3)(e) are taken to be matters relating to the variation.
(3)The regulations may provide that, for the purposes of the FWC determining whether it is satisfied that the variation has been genuinely agreed to by the affected employees for the purposes of subparagraph 216DC(1)(b)(ii), specified provisions of this Part, or regulations made for the purposes of this Part, have effect with such modifications as are prescribed by the regulations.
216DE When the FWC may refuse to approve a variation of a single interest employer agreement
(1)If an application for the approval of a variation of a single interest employer agreement is made under section 216DA or 216DB, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:
(a)a person committing an offence against a law of the Commonwealth; or
(b)a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.
(2)Subsection (1) has effect despite section 216DC (which deals with the approval of variations of single interest employer agreements).
(3)If the FWC refuses to approve a variation of a single interest employer agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.
216DF When variation comes into operation
If a variation of a single interest employer agreement is approved under section 216DC, the variation operates from the day specified in the decision to approve the variation.”
As is evident from the provisions, the approval requirements for the variation are different depending upon the nature of the applicant. In each case here, it is the applicant employers that have made the application to have their agreed variation approved by the Commission. This means that the additional requirements provided by s.216DB and ss.216DC(1A), (1B) and (1C), where an employee organisation is the applicant, do not apply. Further, the rebuttable presumptions in s.216DC(1AA) and s.216DC(3AB), associated with employers employing 50 or more employees, also do not operate.
I briefly deal with below, my satisfaction with the various requirements and considerations relevant to these matters.
The making of the variations – s.216D and 216DAA
The Commission is being requested to approve the variations to the HVAC Agreement that have been made by the parties. It is convenient to first deal with the requirements of the Act in that regard. I will return later to the requirement that the variations have been genuinely agreed.
The variation may be jointly made by an employer that is not yet covered by a single interest employer agreement, and their affected employees, being the employees employed by it at the time who will be covered by the agreement if the variation is approved by the Commission. The relevant time would be when the variation is being made.[4]
The employer may request that the affected employees approve the proposed variation by voting for it. Any such vote may be undertaken by ballot or by an electronic method.[5]
Each of the applicant employers in this matter have agreed to a joint variation with their affected employees. The employees have approved the variations by a majority or unanimous vote in each case, conducted by an electronic ballot. The ballots were conducted by an independent ballot agent.
The Act also requires that before an employer requests the employees to approve the proposed variation, it must take all reasonable steps to ensure that the terms of the agreement as proposed to be varied, and the effect of those terms, are explained to the affected employees and that the explanation is provided in an appropriate manner taking into account the circumstances and needs of the employees.[6] The Act also provides some examples of the kinds of employees whose circumstances and needs are to be taken into account.[7]
The material provided with each of the applications supports a finding that these requirements have been met. The measures undertaken included the provision of both written and oral explanations of the effect of the variation; comparisons between the HVAC Agreement; the existing arrangements and the terms of the existing modern award; and meetings with the employees attended by both management and the AMWU. Appropriate information and notice were provided in advance of each ballot.
The variation in each case has been made under the terms of the Act.[8]
The making of the applications – ss.216DA and 216DC(1)(a)
As noted above, the applications have been made by each applicant employer. The material accompanying the applications complied with the requirements of the Act and the Fair Work Rules 2009.
The applications were made within 14 days after the variations were made.
The variations have been signed as required by the Act and Fair Work Regulations 2009. In that regard, I permitted the applications to be amended to include revised signature pages that reflected the requirement of regulation 2.10E that it also be signed by at least one representative of the affected employees.
The applications are all validly made. This meets the requirements of s.216DA and s.216DC(1)(a) of the Act.
The other approval requirements – s.216DC
Have the relevant parties had the opportunity to express their views?
I am satisfied that the employers presently covered by the HVAC Agreement, and the AMWU as the covered employee organisation, have had the opportunity to express their views to the Commission on the proposed variations.[9] The employers concerned were each invited by the Commission to directly advise of their views on each application. No concerns were raised. The AMWU has directly participated in the applications and the hearing and support the variations being approved.
This meets s.216DC(1)(b)(i) of the Act.
Has each variation been genuinely agreed to by the affected employees in accordance with s.216DD of the Act?
Section 216DD of the Act provides, in effect, that the Commission must apply the terms of s.188 with the stated modifications which allow for the fact that the application concerned involves a variation to an agreement rather than the making of a new enterprise agreement. This includes that certain pre-employee approval steps required for the making of a new enterprise agreement[10] do not apply to a variation of a single interest employer agreement.
Section 188 and the directly related provisions are as follows:
“188 Determining whether an enterprise agreement has been genuinely agreed to by employees
Statement of principles
(1)The FWC must take into account the statement of principles made under section 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.
Sufficient interest and sufficiently representative
(2)The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:
(a)have a sufficient interest in the terms of the agreement; and
(b)are sufficiently representative, having regard to the employees the agreement is expressed to cover.
Note:In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.
Agreement of bargaining representatives that are employee organisations
(2A)The FWC cannot be satisfied that an enterprise agreement to which section 180A or 180B applies has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with section 180A or 180B (as the case requires) in relation to the agreement.
Where notice of employee representational rights was required
(3)Subsection (4) applies in relation to an enterprise agreement if an employer was required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement.
(4)The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:
(a)sections 173 and 174 (which deal with giving notice of employee representational rights);
(b)subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given).
Explanation of terms of the agreement
(4A)The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 180(5) in relation to the agreement.
Minor errors may be disregarded
(5)In determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement (including determining whether it is satisfied that an employer complied with the provisions mentioned in subsection (2A) or (4) or (4A)), the FWC may disregard minor procedural or technical errors made in relation to the following requirements if it is satisfied that the employees were not likely to have been disadvantaged by the errors:
(a)section 173 or 174 (which deal with notices of employee representational rights for certain agreements);
(aa)subsection 180(5) (which requires employers to explain the terms of agreements);
(ab)section 180A or 180B (which deal with agreement of certain bargaining representatives);
(b)subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given);
(c)subsection 182(1) or (2) (which deal with the making of different kinds of enterprise agreements by employee vote).
Regulations
(6)The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the requirements (if any) prescribed by the regulations for the purposes of this subsection are met.
… …
188B Statement of principles on genuine agreement
(1)The FWC must, by legislative instrument, make a statement of principles for employers on ensuring that employees have genuinely agreed to an enterprise agreement.
(2)The FWC must publish the statement on the FWC’s website and by any other means that the FWC considers appropriate.
(3)The statement must deal with the following matters:
(a)informing employees of bargaining for a proposed enterprise agreement;
(b)informing employees of their right to be represented by a bargaining representative;
(c)providing employees with a reasonable opportunity to consider a proposed enterprise agreement;
(d)explaining to employees the terms of a proposed enterprise agreement and their effect;
(e)providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing employees of the time, place and method for the vote;
(f)any matter prescribed by the regulations for the purposes of this paragraph;
(g)any other matters the FWC considers relevant.
(4)The statement is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the statement.”
A Full Bench[11] of the Commission has clarified the operation of these provisions in light of the Statement of Principles in the following terms:
“[76] The important point to be made is that while the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed. Where an employer follows pre-approval steps that are consistent with the Statement of Principles, that would weigh more favourably towards a conclusion that an agreement has been genuinely agreed. The converse is equally true of course. The requirement to take into account the Statement of Principles does not displace the requirement to consider each of the other matters set out in s 188 in determining whether an agreement has been genuinely agreed. In the present case, the SDA submits that there are various grounds upon which we should find that the Agreement has not been genuinely agreed. We turn to those matters now.”
I have taken into account the Statement of Principles in considering the requirements of s.188 of the Act in its form as modified by s.216DD.
Without dealing with all matters which arise, I am satisfied that in each case the employees involved in voting for the variations had both a sufficient interest in the variation and are sufficiently representative of the employees to be included in the HVAC Agreement as a result of each variation. Further, the agreed variations are authentic including by virtue that the employees who voted for the variation had an informed and genuine understanding of what was being approved.
I have earlier found that the employers had met the relevant pre-ballot information requirements of s.216DAA and I consider that the arrangements for the ballots were consistent with the making of genuinely agreed variations. Further, in the case of each employer, a majority or more of the employees who voted approved the variation. I also observe that a high participation rate for each ballot was evident.
I am satisfied that the requirements of s.216DC(1)(b)(ii) of the Act have been met.
Have the requirements of either ss.216DC(2) or 216DC(3) been met?
It is s.216DC(3) of the Act that applies here. That is, the applicant employers must meet the ‘common interest’ and the ‘not contrary to the public interest’ requirements. In the case of a variation, the Commission must assess whether is appropriate to approve the variation having regard to these considerations. If satisfied, this would meet the requirements of s.216DC(1)(b)(iv).
In Application by UWU, AEU and IEU,[12] the Full Bench said the following in relation to the expression ‘common interests’ in s.243(1)(b)(ii) in connection with applications for supported bargaining authorisations:
“…the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non-exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.”
Noting the different role to be played by the “non-exhaustive lists” of ‘common interests’ that are expressed in the two sections involved,[13] the notion of what may be common interests in the above approach is of guidance. In matters of this kind, the factors that may be relevant are identified[14] as including:
· geographical location;
· regulatory regime; and
· the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.
I am satisfied that the applicant employers have clearly identifiable common interests with the employers already covered by the HVAC Agreement, and with each other. This is supportive of the view that it is appropriate to make the variations sought. Amongst other matters, the following factors identified in the applications and evidence confirm that finding. The applicant employers:
· perform work in the same industry and in general terms are businesses of a similar nature;
· are members of the same industry association;
· tender for the same or similar work and provide tenders in a similar manner;
· often perform work on the same worksites;
· employ employees with similar or equivalent qualifications and specialisations;
· are subject to the same regulatory standards in relation to their performance of work;
· perform work contract to contract, meaning there is a high turnover of employees, with the employment of their employees being relatively itinerant in nature; and
· often hire employees from the same pool of workers.
As to the terms and conditions of employment, each of the applicant employers presently applies the beneficial terms of the HVAC Agreement administratively. The variations are designed to formalise those arrangements and confirm legal coverage under that instrument. As a result, the terms and conditions of the relevant employees of the existing employers and the applicant employers are broadly consistent.
The applicant employers and the employers already covered by the HVAC Agreement are all based and perform work in New South Wales, and to a limited degree, work in the Australian Capital Territory. I consider that this aspect alone would not be a significant indicator of relevant common interests.
The notion of public interest was recently considered by a Full Bench[15] of the Commission in a related context. Amongst other observations and relying upon earlier authority, the Full Bench stated that the expression “in the public interest” imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.[16] Further, that “in identifying matters that may be relevant to an assessment of the public interest, a distinction is often drawn between matters affecting the public interests and the private interests of the parties.”[17]
The Full Bench also relevantly stated that:
“The distinction between matters that affect the public interest as opposed to the private interests of the parties will often not be clear. A consideration may affect both the interests of the public at large and the interests of one of more of the parties to the proceedings. The interests of the public might also be affected as a result of the impact of an authorisation on one of the parties. The assessment of whether the making of an authorisation is contrary to the public interest will depend, very much, on the facts of a particular case.”[18]
As to the notion that the test is whether the authorisation (in this case the approval of the variations) is contrary to the public interest, the Full Bench stated:
“… … it must be proved that there is some consequence that would result from making an authorisation that could lead to the conclusion that it is contrary to the public interest to do so. Of course, the identification of one consideration or consequence of making an authorisation that might be said to be contrary to the public interest may not be sufficient. It will, in such a case, be necessary to assess the whole of the facts and circumstances to determine whether, as a whole, it had been proved that making an authorisation would be contrary to the public interest.”[19]
In this matter, nothing has been identified that might challenge the public interest. The parties have freely agreed their terms and conditions, which have previously been approved by the Commission, in the context of the provisions of the Act. The variations directly impact a limited number of parties.
Having regard to all of the circumstances of this matter I am also satisfied that it is not contrary to the public interest to make the variations.[20]
These findings meet the requirements of s.216DC(1)(b)(iv) of the Act.
Do the applicant employers have reasonably comparable operations and business activities with the other employers covered by the HVAC Agreement?
As the requirements of s.216DC(3) have been met, s.216DC(1)(b)(vi) of the Act requires that the operations and business activities of each of the applicant employers are reasonably comparable with those of the other employers presently covered by the HVAC Agreement. The material before the Commission, including that associated with the assessment of common interests, supports such a finding. In reaching this conclusion and those concerning other relevant matters, I have also had regard to the circumstances of the employers presently covered by the HVAC Agreement revealed in the decision of the Commission approving the relevant Authorisation.[21]
This finding meets the requirements of s.216DC(1)(b)(v) of the Act.
Existing bargaining
Section 216DC(3B) of the Act provides that the Commission may refuse to approve the variation if satisfied, in effect, that all of the following apply:
· The employer concerned is bargaining in good faith for an enterprise agreement that will cover the same or substantially the same group of employees; and
· The employer and the employees have a history of effectively bargaining; and
· On the day of approval, less than 9 months has elapsed since the most recent nominal expiry date of an existing enterprise agreement.
These circumstances do not apply to any of the applicant employers.
General building and construction work
Section 216DC(4) of the Act prevents a variation of this kind being approved if it were to cover employees in the general building and construction industry. That term is relevantly defined in s.23B to mean:
“23B Meaning of general building and construction work
(1) Work is general building and construction work if:
(a) the work is done, onsite, by an employee in the industry of:
(i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General On‑site Award 2020 as in force at the applicable time; or
(ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General On‑site Award 2020 as in force at the applicable time; and
(b) the work is not any of the following:
(ii) work in the industry of metal and engineering construction within the meaning of paragraph 4.3(c) of the Building and Construction General On‑site Award 2020 as in force at the applicable time;
(iii) work in manufacturing and associated industries and occupations within the meaning of clause 4.8 of the Manufacturing and Associated Industries and Occupations Award 2020 as in force at the applicable time;
(iv) the work of an employee who is covered by the Joinery and Building Trades Award 2020, as in force at the applicable time, in relation to the work;
(v)work in the industry of electrical services, within the meaning of clause 4.3 of the Electrical, Electronic and Communications Contracting Award 2022 as in force at the applicable time, provided by electrical, electronics and communications contractors and their employees;
(vi) work that is plumbing, or fire sprinkler fitting, within the meaning of clause 4.2 of the Plumbing and Fire Sprinklers Award 2020 as in force at the applicable time;
(vii) work in the black coal mining industry within the meaning of clause 4.2 of the Black Coal Mining Industry Award 2020 as in force at the applicable time;
(viii) work in the mining industry within the meaning of clause 4.2 of the Mining Industry Award 2020 as in force at the applicable time;
(ix) work in the quarrying industry within the meaning of clause 4.3 of the Cement, Lime and Quarrying Award 2020 as in force at the applicable time;
(x) work in the concrete products industry within the meaning of clause 4.2 of the Concrete Products Award 2020 as in force at the applicable time;
(xi) work in the premixed concrete industry within the meaning of clause 4.2 of the Premixed Concrete Award 2020 as in force at the applicable time;
(xii) work in connection with the installation, major modernisation, servicing, repair or maintenance of lifts and escalators, or air‑conditioning or ventilation;
(xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time;
(xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General On‑site Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity.
(2) The applicable time is the start of the day before this section commences.
The Supplementary Explanatory Memorandum to the Secure Jobs Better Pay Act[22] stated:
“76. Amendment 128 would insert new Part 23A dealing with excluded work.
77.Item 651A would amend section 12 by inserting signpost definitions for “applicable time”, defined by reference to subsection 23B(2), and “general building and construction work”, defined by reference to subsection 23B(1). In this document, the term ‘excluded work’ is used interchangeably with the defined term "general building and construction work” to aid comprehension.
78.Item 651B would insert a new section 23B, setting out the meaning of “general building and construction work” and “applicable time”.
79.New subsection 23B(1) would define “general building and construction work” as work done onsite by an employee of an employer that is in the industry of general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General Onsite Award 2020 as in force at the applicable time. Subparagraph 23(B)(1)(b) would provide for a number of exclusions by reference to modern awards in force at the applicable time.
80.New subsection 23B(2) would define “applicable time” as the start of the day before the section commences.
81.While existing provisions of the FW Act refer to the “building and construction industry”, for example subsection 123(3) and paragraphs 534(1)(e) and 789(1)(e), the expression “general building and construction work” used in new Part 23A would not be intended to have the same meaning as these existing provisions.”[23]
The employees concerned here work in connection with installation, major modernisation, servicing, repair or maintenance of air-conditioning or ventilation (including apprentices and trainees).[24] They are covered by the Building and Construction General On-site Award 2020. However, the ‘exception’ provided by s.23B(1)(b)(xii) of the Act applies.
The HVAC Agreement will not cover employees in relation to general building and construction work, including as a result of these variations. This meets the requirements of s.216DC(4) of the Act.
The absence of a relevant supported bargaining authorisation
Section 216DD(5) of the Act provides that the Commission must not approve a variation of this kind if the employer that would be covered is specified in a supported bargaining authorisation in relation to the affected employees.
The three employers concerned here are not subject to a supported bargaining authorisation.
Other considerations – s.216DE
Section 216DE of the Act provides, in effect, that the Commission may refuse to approve the variation if it considers that the terms of the agreement as proposed may result in a person committing an offence against the law of the Commonwealth or being liable to pay a pecuniary penalty in that regard.
The variation is to join an existing approved enterprise agreement following a process consistent with the terms of the Act. Section 216DE is not engaged.
Conclusions and approval
Given my satisfaction with all of the relevant requirements, and having assessed the relevant considerations, I was required to approve each of the variations.
The variations are approved and attached to this decision as Annexure A. The HVAC Agreement provides in clause 4 that it applies to “The Company”. This term is defined in clause 2 as meaning “All Employers listed in Schedule A and/or bound by this agreement.” There is no Schedule A in the HVAC Agreement. However, it is apparent that the “The Company” includes those employers who have agreed to be bound and have signed the instrument on the relevant signature pages that are attached in Appendix 9. The variations (additional signature pages to confirm that the applicant employers are now covered) in each case are to be added to the terms of the existing HVAC Agreement in Appendix 9. The consolidated version of the HVAC Agreement, as varied, is also attached to this decision.
The Commission has a discretion under s.216DF of the Act to determine the date of effect of the variations. The variations in this matter will operate from 19 December 2024 as sought by the parties.
DEPUTY PRESIDENT
Appearances:
R Dobson for the Australian Manufacturing Workers’ Union.
D Mooney for DNM Engineering Pty Ltd.
K Towney with R Irvine for NSW Indigenous Mechanical Air Services.
R Cheetham with A Newham for Commercial Installations Pty Ltd.
M Scavera for the HVAC Manufacturing and Installation Association.
Hearing details:
2024
December 18
MS Teams Video.
ANNEXURE A
Signed for and on behalf of
Commercial Installations Pty Limited
Signature of authorised person
Rod Cheetham – Director
Name and Position of Authorised Person
101 Veron Road, Umina Beach NSW 2257
Address
19 December 2024
Date
Signed for and on behalf of
A Representative of the affected employees
Signature of authorised person
Brad Pidgeon – Acting State Secretary, AMWU NSW/ACT Branch
Name and Position of Authorised Person
3/133 Parramatta Road, Granville NSW 2142
Address
19 December 2024
Date
Signed for and on behalf of
DNM ENGINEERING PTY LTD
Signature of authorised person
Derek Mooney - Director
Name and Position of Authorised Person
34/117 Boyce Road, Maroubra NSW 2035
Address
19 December 2024
Date
Signed for and on behalf of
A Representative of the affected employees
Signature of authorised person
Brad Pidgeon – Acting State Secretary, AMWU NSW/ACT Branch
Name and Position of Authorised Person
3/133 Parramatta Road, Granville NSW 2142
Address
19 December 2024
Date
Signed for and on behalf of
NSW INDIGENOUS MECHANICAL AIR SERVICES PTY LTD
Signature of authorised person
Kimball Towney - Director
Name and Position of Authorised Person
32 Stella Road, Umina Beach NSW 2257
Address
19 December 2024
Date
Signed for and on behalf of
A Representative of the affected employees
Signature of authorised person
Brad Pidgeon – Acting State Secretary, AMWU NSW/ACT Branch
Name and Position of Authorised Person
3/133 Parramatta Road, Granville NSW 2142
Address
19 December 2024
Date
[1] [2024] FWCA 2209.
[2] [2024] FWC 395 and PR771438.
[3] Section 216D(2) of the Act.
[4] Section 216D(1) of the Act.
[5] Section 216D(3) and (4) of the Act.
[6] Section 216DAA(1) of the Act.
[7] Section 216DAA of the Act.
[8] Section 216D(5) of the Act.
[9] Section 216DC(1)(b)(i) of the Act.
[10] Including ss.180A, 180B, 173, 174 and 181 as called up by s.188(2A), (3) and (4) of the Act.
[11] Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[2024] FWCFB 48 at [76].
[12] [2023] FWCFB 176 at [34] as applied to a single interest employer authorisation application in Independent Education Union of Australia v Catholic Education Western Australia limited and others[2023] FWCFB 1177 at [31].
[13] Section 243(2) provides examples of common interests whereas in s.216DC(3A) the factors are matters that may be relevant to determining whether the employers have a common interest.
[14] Section 216DC(3A) of the Act. See the discussion of a related provision in The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal and Others[2024] FWCFB 253 at [399].
[15] Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shirs Counsil, Ararat Rural City Council[2024] FWCFB 444 at [69] to [80].
[16] Ibid at [69].
[17] Ibid at [70].
[18] Ibid at [71].
[19] Ibid at [72].
[20] Section 216DC(3)(b).
[21] “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2024] FWC 395.
[22] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 House of Representatives Supplementary Explanatory Memorandum.
[23] Subsequent amendments to the Bill to expand the meaning of “general building and construction work” to include work in the civil construction industry, due to the overlapping nature of the industries, did not disturb the apparent purpose of the exclusions and the definitions – see Senate Supplementary Explanatory Memorandum at 20 and 129.
[24] Consistent with the authorisation – [2024] FWC 395 at [1].
Printed by authority of the Commonwealth Government Printer
<AE525044 PR782669>
6
0