DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hi Rise Access Pty Ltd
(AG2018/1452)

COMMISSIONER MCKINNON

MELBOURNE, 17 AUGUST 2018

Application for approval of the Hi Rise Access Pty Ltd Enterprise Agreement 2018 - 2021.

[1] Hi Rise Access Pty Ltd (Hi Rise) has applied for approval of a single-enterprise agreement known as the Hi Rise Access Pty Ltd Enterprise Agreement 2018 – 2021 (the Agreement) under section 185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Agreement covers employees engaged at Hi Rise’s Campbellfield site who are covered by the Manufacturing and Associated Industries and Occupations Award 2010, Clerks – Private Sector Award 2010 and Professional Employees Award 2010. These modern awards are each incorporated as terms of the Agreement except to the extent of inconsistency.

[3] The application was accompanied by a Form F17 statutory declaration made by Mr David Davis and the application was heard on 14 August 2018.

[4] The Form F17 statutory declaration indicates that a copy of the Agreement was provided to employees. There is no indication that a copy of the modern awards, or access to them, was provided to employees during the access period. Mr Davis said this information was not provided to employees because the Agreement replaces an earlier enterprise agreement and the employees were not interested in the information.

[5] On the material before me, I am not satisfied that all reasonable steps were taken by Hi Rise to ensure that during the access period for the Agreement, employees were given a copy of the modern awards or access to them. The matter is not one that can be remedied by way of undertaking under section 190.

[6] It follows that I cannot be satisfied that the Agreement was genuinely agreed for the purposes of sections 186(2)(a) and 188 of the Act. The Agreement cannot be approved.

[7] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Hi Rise Access Pty Ltd, sought approval of its enterprise agreement for the period of 2018 to 2021. The agreement covered its employees, who were involved in the maintenance and repair of high-rise buildings. The dispute arose from concerns raised by a union representative regarding the terms and conditions outlined in the proposed agreement.

The primary legal issues before the Commission were whether the agreement contained mandatory provisions as required by the Fair Work Act 2009, and whether it met the 'better off overall test'. This test ensures that employees are not worse off financially or in terms of conditions compared to their previous arrangements. The Commission also considered whether the agreement had been made in good faith, in line with the principles of the Fair Work Act.

After reviewing the evidence and submissions, the Commission found that the agreement contained the necessary mandatory provisions and satisfied the better off overall test. The applicant had demonstrated that the proposed terms and conditions would not result in employees being worse off. Additionally, the Commission was satisfied that the agreement had been made in good faith, with adequate consultation and consideration of employee interests. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission hereby approves the Hi Rise Access Pty Ltd Enterprise Agreement 2018-2021, effective from the date of this decision. The agreement will apply to the employees covered by its terms, and the applicant is required to ensure compliance with its provisions.

Hi Rise Access Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established