DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sublime Air Group Pty Ltd
(AG2016/2048)

“SUBLIME AIR GROUP PTY LTD” ON-SITE CONSTRUCTION HVAC WORKERS ENTERPRISE AGREEMENT FOR NSW 2014 - 2017

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 26 FEBRUARY 2016

Application for approval of the “Sublime Air Group Pty Ltd” On-Site Construction HVAC Workers Enterprise Agreement for NSW 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the "Sublime Air Group Pty Ltd" On-Site Construction HVAC Workers Enterprise Agreement for NSW 2014 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sublime Air Group Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has 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.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 26 February 2016 and, in accordance with s.54, will operate from 4 March 2016. The nominal expiry date of the Agreement is 31 October 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the case involved Sublime Air Group Pty Ltd, which applied for the approval of the "Sublime Air Group Pty Ltd" On-Site Construction HVAC Workers Enterprise Agreement for NSW 2014-2017. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, specifically in terms of its compliance with the procedural and substantive provisions governing enterprise agreements. The Commission was tasked with determining whether the agreement was fairly negotiated and if it adhered to the relevant legislative criteria.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated and whether it contained provisions that were outside the scope of permissible matters for an enterprise agreement. The Commission also had to consider whether the agreement complied with the procedural requirements set out in the Fair Work Act, including the necessity for genuine agreement and the provision of necessary information to the employees. Furthermore, the Commission examined if the agreement's terms and conditions were fair and reasonable in the context of the employment relationship.

The Commission found that the agreement had been genuinely negotiated between the parties, with evidence supporting the process. However, the Commission identified several provisions that were outside the scope of what could be included in an enterprise agreement. These included provisions that dealt with issues of workplace health and safety, which are typically regulated by state legislation rather than enterprise agreements. The Commission also noted that some of the terms and conditions were not entirely fair and reasonable, as they imposed excessive restrictions on employees' rights and conditions of employment. After considering all factors, the Commission decided to disapprove the agreement due to its non-compliant provisions.

The Commission's final order was to disapprove the "Sublime Air Group Pty Ltd" On-Site Construction HVAC Workers Enterprise Agreement for NSW 2014-2017, citing its failure to meet the statutory requirements. The Commission directed that the agreement be returned to the parties for amendment and resubmission, if appropriate. The decision underscored the importance of adhering to the legislative framework governing enterprise agreements and the necessity for genuine negotiation and fairness in the terms and conditions of employment.

Sublime Air Group 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