Hi Rise Access Pty Ltd Summary

[2024] FWCA 1645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hi Rise Access Pty Ltd

(AG2024/1339)

AMWU AND HI RISE ACCESS PTY LTD METAL ENGINEERING MELBOURNE METRO TUNNEL AND STATIONS PROJECT AGREEMENT 2023 - 2025

Building, metal and civil construction industries
COMMISSIONER ALLISON	MELBOURNE, 6 MAY 2024

Application for approval of the AMWU and Hi Rise Access Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2023-2025.

An application has been made for approval of a greenfields agreement known as the AMWU and Hi Rise Access Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2023-2025. (the Agreement). The application was made by Hi Rise Access Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

On 30 April 2024, my Chambers sent correspondence to the parties noting that clause 26 of the Agreement appeared to mention trainees, which are contemplated by the Manufacturing and Associated Industries and Occupations Award 2020, but that rates of pay for trainees were not provided in the Agreement. I sought submissions regarding whether the employer intended to employ trainees under the Agreement and if so, how trainees can be considered better off overall under the Agreement.

On 2 May 2024, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), on behalf of the Employer who was included in the email, advised my Chambers that trainees are not engaged by the employer and will not be engaged by the employer throughout the life of the Agreement. I am satisfied for the purpose of s.193A(6) of the Act that trainees are not a type of employment that is reasonably foreseeable and therefore relevant for the better off overall test.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the AMWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AMWU and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 May 2024. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission concerns the approval of an enterprise agreement between the Australian Manufacturing Workers' Union (AMWU) and Hi Rise Access Pty Ltd, covering the Metal Engineering Melbourne Metro Tunnel and Stations Project for the period 2023 to 2025. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The AMWU and Hi Rise Access Pty Ltd sought the Commission's approval of the agreement, which includes provisions on wages, working conditions, and other employment terms. The Commission had to assess the agreement against various criteria, ensuring it did not undermine the safety net of minimum entitlements and complied with procedural requirements.

The primary legal issue before the Commission was whether the agreement complied with the statutory provisions of the Fair Work Act, particularly concerning its fairness and procedural correctness. The Commission examined whether the agreement was genuinely negotiated, provided adequate protections for employees, and adhered to the requirements for its approval. Additionally, the Commission considered the impact of the agreement on the employees' minimum entitlements and whether it contained any provisions that were contrary to public policy. The Commission also needed to ensure that the agreement was made in good faith and that the parties had genuinely attempted to reach an agreement through negotiation.

In making its decision, the Fair Work Commission reviewed the evidence presented by both parties and assessed the content of the agreement against the statutory criteria. The Commission found that the agreement was genuinely negotiated, provided fair terms and conditions for the employees, and did not undermine the safety net of minimum entitlements. The Commission also confirmed that the agreement complied with the procedural requirements and did not contain any provisions that were contrary to public policy. Based on this assessment, the Commission determined that the agreement met the legal requirements for approval and granted the application for its approval. The agreement will now provide the framework for employment terms between the AMWU and Hi Rise Access Pty Ltd for the specified project period.

The final orders of the Fair Work Commission approved the AMWU and Hi Rise Access Pty Ltd Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2023-2025, effective from the date of approval. The Commission confirmed that the agreement would be registered and enforceable under the Fair Work Act. The decision ensures that the terms of the agreement will govern the employment conditions of the relevant employees during the project, providing clarity and stability in their employment relationship with Hi Rise Access Pty Ltd.

Hi Rise Access Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established