Tri Tech Refrigeration Pty Ltd T/A Tri Tech Refrigeration Pty Ltd

[2024] FWCA 3754

[2024] FWCA 3754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tri Tech Refrigeration Pty Ltd T/A Tri Tech Refrigeration Pty Ltd

(AG2024/3361)

AMWU AND TRI TECH REFRIGERATION SERVICES PTY LTD METALS LABOUR HIRE AGREEMENT 2023-2026

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 28 OCTOBER 2024

Application for approval of the AMWU and Tri Tech Refrigeration Services Pty Ltd Metals Labour Hire Agreement 2023-2026

1. Tri Tech Refrigeration Services Pty Ltd has applied for approval of an enterprise agreement known as AMWU and Tri Tech Refrigeration Services Pty Ltd Metals Labour Hire Agreement 2023-2026 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

1. The Agreement is a single enterprise agreement.

Minor Procedural or Technical Errors

1. The Employer issued an earlier version of the Notice and therefore did not comply with s 174(1A). Aside from use of the earlier version of the Notice, there were no substantive differences. I consider the use of the earlier Notice is a minor technical error. Employees were requested to vote on the Agreement on the 21st day after the last Notice of Employee Representational Rights was provided, in contravention of s 181(2). I consider that this was a minor procedural error.

1. As the above two errors were minor technical and procedural errors, I am of the view that the errors can be disregarded in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error.

1. In relation to the Notice, the differences are minor and not substantive. I have previously detailed the differences between the pre-6 June 2023 and post-6 June 2023 Notice in Application by AJS Electrical Contracting Pty Ltd T/A AJS Electrical Contracting [2023] FWC 3343 at [34].

1. In relation to the request to vote on the 21^st day, I formed the view that employees were not disadvantaged by the error based on information and supporting documentation provided by the Employer. This was that employees have twice previously been informed of their rights to be represented, negotiated the Agreement and voted upon it. But, due to changes in business ownership, applications for approval of the agreement were not made. This is the third time that employees have voted upon the agreement. They are therefore well versed with their representational rights, and the loss of one day did not affect their opportunity to exercise those rights.  The Union also agreed that employees were not disadvantaged.

Sufficiently representative concern

1. I also had a concern about whether the employees who voted on the Agreement were sufficiently representative. The Agreement covers only 3 employees but contains 6 classifications. The 3 employees are employed across only 2 of those classifications. The classifications are the same as the underpinning Award but given the scope of the industry of the employer, relates only to the provision of labour hire services in industrial refrigeration maintenance and service in Victoria. The classifications change based on experience and qualifications. As a result, I am satisfied that the employees are sufficiently representative, as they reflect the industry and occupational scope of the Agreement, and the rates of pay and other terms of the Agreement apply to them.

Approval of Agreement

1. Subject to the above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

1. The Agreement does not contain a delegates’ rights term as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries Award 2020 is taken to be a term of the Agreement.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) lodged a Form F18 statutory declaration giving notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note the Agreement covers the AMWU.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 4 November 2024.

1. In accordance with Clause 5 of the Agreement, the nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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