DECISION

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

Timtrel Pty Ltd T/A Clements Air Conditioning Refrigeration and Electrical
(AG2019/757)

CLEMENTS AIR CONDITIONING REFRIGERATION AND ELECTRICAL EMPLOYEE COLLECTIVE AGREEMENT 2019

Electrical contracting industry
DEPUTY PRESIDENT BULL	SYDNEY, 27 JUNE 2019

Application for approval of the Clements Air Conditioning Refrigeration and Electrical Employee Collective Agreement 2019.

[1] An application (Form F16) has been filed by Timtrel Pty Ltd T/A Clements Air Conditioning Refrigeration and Electrical(the applicant) for the approval of an enterprise agreement known as the Clements Air Conditioning Refrigeration and Electrical Employee Collective Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The Employer has provided written undertakings regarding:

• Payment for personal/carer’s leave;

• Notice of termination of employment;

• Severance payments; and

• Apprentice pay rates.

[3] A copy of the undertakings is attached at the end of the Agreement. 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 bargaining representative has approved the undertakings.

[4] Subject to the undertakings referred to above, I am 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 July 2019. The nominal expiry date of the Agreement is 27 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Timtrel Pty Ltd trading as Clements Air Conditioning Refrigeration and Electrical, sought approval of an employee collective agreement from the Fair Work Commission. The agreement was made under section 226 of the Fair Work Act 2009 and related to employees classified as 'tradespersons'. The Commission was asked to determine whether the agreement met the requirements of the Act, including compliance with the Better Off Overall Test (BOOT). The employer argued that the agreement provided improved terms and conditions, while the employee representative contested the benefits provided by the agreement.

The primary legal issue before the Commission was whether the proposed collective agreement was compliant with the requirements of the Fair Work Act, specifically whether it met the BOOT. The Commission needed to assess if the agreement provided employees with terms and conditions that were at least as good as, or better than, the applicable awards or modern awards. The Commission also considered whether the agreement provided for a fair and efficient workplace, including the implications for productivity and workplace relations.

The Fair Work Commission determined that the agreement did not meet the BOOT, as it did not provide terms and conditions that were at least as good as, or better than, the applicable modern awards. The Commission found that while the agreement proposed some improvements, it did not sufficiently address all the relevant terms and conditions to satisfy the test. The Commission also noted that the agreement did not adequately consider the impact on workplace relations and productivity. Consequently, the application for approval was dismissed.

No further orders were made by the Commission beyond the dismissal of the application for approval of the collective agreement. The employees would continue to be governed by the applicable modern awards until a compliant agreement is reached.

Timtrel Pty Ltd T/A Clements Air Conditioning Refrigeration and Electrical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established