Height Dynamics Pty Ltd T/A Height Dynamics Onsite Services

[2025] FWCA 427

[2025] FWCA 427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Height Dynamics Pty Ltd T/A Height Dynamics Onsite Services

(AG2024/4977)

HEIGHT DYNAMICS PTY LTD (ACN 093057339) ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 3 FEBRUARY 2025

Application for approval of the Height Dynamics Pty Ltd (ACN 093057339) Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the Height Dynamics Pty Ltd (ACN 093 057 339) Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Height Dynamics Pty Ltd T/A Height Dynamics Onside Services (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. Correspondence was sent to the Employer by my Chambers on 8 January 2025 raising a number of concerns including that the Agreement does not contain conditions that are otherwise in the relevant award:

a.Fares allowance – The Employer has submitted that all employees star and finish at the Kedron office base and not at the construction site and that they travel to site in Employer provided vehicles.

b.Night Shift – The Employer provided indicative rosters that indicate it is not reasonably foreseeable that employees would perform regular shiftwork other than adhoc night shifts of no more than 2-night shifts in a row which would otherwise attract overtime payments (less than 5 consecutive shifts)

I am consequently satisfied that per s. 193A(6A) of the Act work outside of the modelled shifts provided by the Applicant are not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test. I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT.

1. The Agreement does not contain a delegate’s rights term, pursuant to s.205A, and on that basis the term in the relevant modern award will apply.

1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. 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.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 10 – Annual Leave

·   Clause 11.1.3 – Right to refuse Public Holidays

·   Clause 14.1.3 – With-holding of monies on termination

·   Clause 15.2.1 – Redundancy Payments.

However, noting clause 1.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and will operate from 10 February 2025. The nominal expiry date of the Agreement is 2 February 2029.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

<AE527884  PR783934>