Lift Investments VIC Pty Ltd

[2024] FWCA 4554

[2024] FWCA 4554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lift Investments VIC Pty Ltd

(AG2024/4269)

UNITED LIFT SERVICES PTY LTD AND THE TRUSTEE FOR UNITED LIFT SERVICES CONSTRUCTION & SERVICE EMPLOYEES ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 18 DECEMBER 2024

Application for approval of the United Lift Services Pty Ltd and The Trustee for United Lift Services Construction & Service Employees Enterprise Agreement 2024

Introduction

1. Lift Investments VIC Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the United Lift Services Pty Ltd and The Trustee for United Lift Services Construction & Service Employees Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 9 April 2024 and the Agreement was made on 13 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Regulation 2.06 Requirements

1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Application lodged out of time

1. The application was made on 30 October 2024, which is 27 days after the date the Agreement was made and accordingly outside of the timeframe of 14 days prescribed by s.185(3)(a) of the Act. The Employer provided submissions that the delay in submitting the application was due to a clerical error on the Employer’s part.

1. I am satisfied that it is fair in all the circumstances to extend the period of time for lodging the application pursuant to s.185(3)(b) of the Act.

Notice of Employee Representational Rights (NERR) Title, Distribution and Coverage

1. The title of the Agreement as reflected in the NERR issued to employees on 9 April 2024 was ‘United Lift Services Pty Ltd/Lift Services Installation & Service Division NSW & ACT Lift Industry Agreement 2024’. However, the title clause in the Agreement reads ‘United Lift Services Pty Ltd and The Trustee for United Lift Services Construction & Service Employees Enterprise Agreement 2024’. The Form F17B lodged by the Employer indicated that the title of the Agreement was changed following the issue of the NERR as:

it became apparent that the title of the proposed agreement did not align with the business nationally. The business proposed to change the title of the Agreement. An email was sent to technicians detailing the proposed change to the EBA title (Attached as Annexure 3). The terms otherwise remained unchanged.

1. Further, the F17B reflected that the Agreement is intended to cover ‘technicians and mechanics’. However, other sections of the F17B referred to the NERR only having been issued to ‘technicians’. The classifications in Schedule 1 of the Agreement refer to both ‘technicians and mechanics’.

1. On 27 November 2024, my Chambers wrote to the parties seeking clarification as to the above ambiguities or inconsistencies in relation to the NERR, the Agreement’s title, and its intended coverage. On 9 December 2024, the Employer provided submissions that it uses the term ‘technician’ to cover all tradespeople, whereas ‘mechanic’ is intended to refer only to those employees who are mechanically qualified – therefore, its intended meaning when referring to ‘technicians’ is to encompass all employees intended to be covered by the classifications in the Agreement. The Employer also provided submissions that the above issues constituted minor procedural or technical errors, and that employees were unlikely to have been disadvantaged because:

(a)The NERR and subsequent explanatory materials were distributed to all employees intended to be covered by the Agreement;

(b)The employees conducted communications between themselves using WhatsApp, in addition to the email notifications from the Company;

(c)A meeting was held with employees in order explain the nature of the change of the name of the Agreement on 5 September 2024; and,

(d)Employees could not have confused the Agreement with another agreement subject to bargaining with the employer, as there was no bargaining conducted at the time for any other enterprise agreement.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters described in [6] and [7] constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. I note that the undertakings provided incorporate a National Employment Standards (NES) precedence term. Relevantly, clause 18 of the Agreement provides for Employer super contributions of 11%. This figure is less than the minimum of 11.5% under the Superannuation Guarantee Act andmay be inconsistent with s.116B of the Act.

1. I note that in accordance with the undertakings, this clause will be read and interpreted in conjunction with the NES.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 December 2025. The nominal expiry date of the Agreement is 18 December 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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