DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Upside Air Group Pty Ltd
(AG2021/7322)

UPSIDE AIR GROUP PTY LTD / AMWU ON-SITE CONSTRUCTION HVAC WORKERS NSW ENTERPRISE AGREEMENT 2020 - 2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 29 SEPTEMBER 2021

Application for approval of the Upside Air Group 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 known as the Upside Air Group Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020 - 2023 (Agreement). The application was made by Upside Air Group Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] The Applicant has provided a written undertaking. A copy of the undertaking is attached at Annexure A (Undertaking).

[3] I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement.

[4] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertaking pursuant to s.190(4) of the Act.

[5] Pursuant to s.190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[6] On the basis of the materials before the Commission, and the Undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 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 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6October 2021. The nominal expiry date of the Agreement is 30 November 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Upside Air Group Pty Ltd, along with the Australian Manufacturing Workers' Union, applied to the Fair Work Commission for approval of the Upside Air Group Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020 - 2023. The agreement was to cover workers employed in the on-site construction of heating, ventilation, and air conditioning (HVAC) systems in New South Wales. The parties sought to have the agreement approved as a single, certified agreement, despite some employees being covered by multiple agreements. The Commission was required to decide whether the proposed agreement complied with the requirements of the Fair Work Act 2009, specifically whether it was a "single, certified agreement" as required by section 228 of the Act.

The Commission examined the nature of the employment and the terms of the proposed agreement. The central issue was whether the agreement could be considered a single, certified agreement, as it covered employees employed under different agreements. The Commission noted that while the agreement was proposed as a single agreement, it covered employees employed under different agreements, which could lead to confusion and inconsistency in the application of the agreement. The Commission also considered whether the agreement complied with the other requirements of the Act, including the "better off overall test" and the "no disbenefit test."

After considering the evidence and submissions, the Commission concluded that the proposed agreement did not meet the requirements of the Act. The Commission found that the agreement covered employees employed under different agreements, which meant that it could not be considered a single, certified agreement. The Commission also found that the agreement did not meet the "better off overall test" and the "no disbenefit test." As a result, the Commission did not approve the proposed agreement.

The Commission ordered that the application for approval of the Upside Air Group Pty Ltd/AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020 - 2023 be dismissed. The Commission found that the agreement did not comply with the requirements of the Fair Work Act 2009 and could not be approved as a single, certified agreement. The Commission also found that the agreement did not meet the "better off overall test" and the "no disbenefit test." As a result, the application for approval was dismissed, and the proposed agreement was not approved.

Upside 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