Western Sheetmetal Insulation & Asbestos Removal Pty Ltd

[2025] FWCA 2623

[2025] FWCA 2623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Western Sheetmetal Insulation & Asbestos Removal Pty Ltd

(AG2025/1598)

AMWU & WESTERN SHEETMETAL INSULATION & ASBESTOS REMOVAL PTY LTD METAL AND ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023-2026

Building, metal and civil construction industries
COMMISSIONER CLARKE	MELBOURNE, 6 AUGUST 2025

Application for approval of the AMWU & Western Sheetmetal Insulation & Asbestos Removal Pty Ltd Metal & Engineering On-Site Construction Agreement 2023 - 2026

1. An application has been made for approval of a single enterprise agreement known as the AMWU & Western Sheetmetal Insulation & Asbestos Removal Pty Ltd Metal and Engineering On-Site Construction Agreement 2023-2026 (the Agreement). The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act).   The application has been made by Western Sheetmetal Insulation & Asbestos Removal Pty Ltd (employer).

1. The Australian Manufacturing Workers Union (AMWU), being a bargaining representative for the agreement, has given notice under s.183 that it wants the Agreement to cover the AMWU.  In accordance with s.201(2) I therefore note that the Agreement covers the AMWU.  By way of declaration in form F18, the AMWU has supported the approval of the Agreement, agrees with the content of the employer’s own declaration in support and expresses the view that the Agreement passes the better off overall test.

1. Prior to approving the agreement, it was necessary to make some further enquiries of the parties relating to following matters:

   (a)   The name of the employer given on the Notice of Employee Representational Rights (NERR) provided with the Application was different to that provided in the Agreement;

   (b)   The description of the employees proposed to be covered by the agreement in the NERR provided with the Application was different to the coverage expressed in the Agreement;

   (c)   The Agreement, on the face of it, was expressed to cover trainees, but provided no wage rates for them.  It was not immediately apparent which conditions in the agreement were applicable to trainees, so clarification was sought as to how trainees might be better off overall;

   (d)   There was minimal information provided as to the explanation provided to employees of the terms of the Agreement and the effect of those terms.  All that could be cleaned from the employer’s declaration was that the explanation was verbal and it addressed four features of the Agreement and that employees were encouraged to ask questions of the employer or the AMWU.

1. In correspondence with chambers the following became apparent (and was undisputed):

   (a)   An error had been made in preparing the application, in that the incorrect NERR was annexed to it.   The correct version was subsequently provided and did correctly name the employer.  

   (b)   The correct NERR did not describe the employees proposed to be covered in identical terms to the NERR initially provided with the application, but nor was that description consistent with the ultimate coverage of the Agreement.  As coverage of an Agreement is a matter for bargaining in any event, this is not a matter that properly warrants hesitation in approving the Agreement in its own.   My concern was more whether the employees were properly informed of the intended coverage from the outset (and thus whether the NERR was correct in form and content at the time it was posted).  Having regard to the undisputed submissions of the AMWU on this issue, I am satisfied that the employees were not likely have been disadvantaged by this misdescription.

   (c)   An undertaking has been offered to deal with the concern regarding trainees.  The undertaking is supported by the AMWU.  I am satisfied that the undertaking will not cause any financial detriment to any employee covered by the agreement or result in substantial changes to it.

   (d)   There was an oversight in preparing the application in that it failed to refer to (or include) the comprehensive written explanatory material that was in fact made available to the employees.  Having reviewed that material, I am satisfied that all reasonable steps were taken to explain the terms of the agreement and the effect of those terms as required by subsection 180(5) of the Act and paragraphs 8-14 of the Statement of Principles.

1. Subject to the undertaking referred to above and having taken into account the materials provided with the application for approval and since, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met.  The undertaking is taken to be at term of the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 August 2025.The nominal expiry date of the agreement is 30 June 2026.

COMMISSIONER

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Annexure A