FREDON AIR (NSW) PTY LTD ON-SITE CONSTRUCTION HVAC WORKERS NSW/ACT ENTERPRISE AGREEMENT 2024

Application for approval of the Fredon Air (NSW) Pty Ltd On-Site Construction HVAC Workers NSW/ACT Enterprise Agreement 2024

[1] Fredon Air (NSW) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Fredon Air (NSW) Pty Ltd On-Site Construction HVAC Workers NSW/ACT Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

[2] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 3 April 2024 and the Agreement was made on 25 February 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

[3] The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) Precedence Term

[4] Clause 38.2 of the Agreement states if an employee fails to provide the required notice, the Company has the right to withhold up to one week of wages and/or entitlements due to the employee on termination, with a maximum amount equal to the equivalent pay for the period of notice. The clause does not appear to limit the source from which the monies may be deducted. The effect of this is that this clause appears to permit the deduction from an employee's entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination) and accordingly may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

[5] To the extent that this clause may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

[6] Having had regard to the Statement of Principles on Genuine Agreement, I am satisfied that each of the requirements of ss.186, 187and 188 as are relevant to this application for approval have been met.

[7] 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 the Agreement to cover it.

[8] In accordance with s.201(2), I note that the Agreement covers the AMWU.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 April 2025. The nominal expiry date of the Agreement is 30 November 2027.

[10] Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

[11] It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity -and no further.

[12] Relevantly, it was identified that clause 5 of the Agreement contained a typographical error, underlined as follows:

In the event of this agreement being silent for fails to address a matter the parties herein agree that Clause 5 is referred to and the Building and Construction General Onsite Award will apply.

[13] On 26 March 2025, the Employer agreed to the Commission's proposal to vary the Agreement pursuant to s.218A of the Act to correct the error to amend the word 'for' to read 'or'.

[14] I am satisfied that the error listed in [12] above is an error, defect or irregularity within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR785758]). The variation will operate from the date the Agreement commences.

[15] The Agreement attached to this Decision is the Agreement as varied and will operate from 9 April 2025.

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