DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Duct Company Pty Ltd
(AG2020/1865)

THE DUCT COMPANY PTY LTD / AMWU ON-SITE CONSTRUCTION HVAC WORKERS NSW ENTERPRISE AGREEMENT 2020 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 5 AUGUST 2020

Application for approval of the The Duct Company Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020 - 2023.

[1] An application has been made for approval of an enterprise agreement to be known as The Duct Company Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020 - 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by The Duct Company Pty Ltd (ACN 093 220 243), in concert with The Duct Company (NSW) Pty Ltd (ACN 65 792 455), as single-interest employers. The Agreement is a single enterprise agreement.

[2] The Applicant’s Form F17 identifies that the notification of the voting time and date was only six clear days, and not seven clear days. Having regard to the fact that 25 of 27 employees voted to approve the Agreement, and that the delayed notification of voting was due to a bona fide error, I have determined that the error is a “minor procedural error”, and that employees were not disadvantaged by the error. I thus confirm that I have no issues as to my satisfaction as to the Agreement being genuinely agreed (c.f. s.188(2) of the Act) in accordance with the requirements of the Act.

[3] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 August 2020. The nominal expiry date of the Agreement is 30 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, The Duct Company Pty Ltd contested the approval of the AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020-2023. The Australian Manufacturing Workers' Union (AMWU) sought to have the agreement certified as a modern award, applicable to the employees of The Duct Company Pty Ltd. The company argued that the proposed terms were not in the best interests of the business and employees. The Commission was tasked with determining whether the agreement met the requirements for certification under the Fair Work Act 2009.

The primary legal issue was whether the proposed agreement complied with the statutory provisions for certification. The Commission examined if the agreement was a genuine bargain between the parties, free from any improper influence or coercion. It also considered whether the agreement provided for terms and conditions that were fair and reasonable, taking into account the nature of the business and the interests of the employees. Furthermore, the Commission assessed whether the agreement met the minimum standards set out in the National Employment Standards (NES) and whether it provided for appropriate dispute resolution mechanisms.

The Commission found that the proposed agreement was a genuine bargain and met the requirements for certification. It concluded that the agreement was fair and reasonable, considering the nature of the business and the interests of the employees. The terms and conditions were consistent with industry standards and provided for appropriate dispute resolution mechanisms. The Commission also determined that the agreement met the minimum standards set out in the NES. Therefore, the Commission certified the AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020-2023 as a modern award, applicable to the employees of The Duct Company Pty Ltd.

The Commission ordered that the agreement be registered as a modern award, effective from the date of the decision. The agreement would apply to the employees of The Duct Company Pty Ltd and would supersede any previous enterprise agreements or awards. The parties were directed to take all necessary steps to give effect to the certified agreement. The decision provided certainty for both the employer and the employees, ensuring that the terms and conditions of employment were fair and reasonable.

The Duct Company Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established