"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2024] FWC 395

1 Fair Work Act 2009 s.248 - Application for a single interest employer authorisation "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (B2023/1219) DEPUTY PRESIDENT WRIGHT SYDNEY, 13 FEBRUARY 2024 Application for a proposed single interest employer authorisation regarding a proposed enterprise agreement for employers in the heating, ventilation and air conditioning industry [1] This is an application for a single interest employer authorisation made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union (AMWU) under s.248 of the Fair Work Act 2009 (Cth) (the Act). The authorisation is sought in respect of bargaining for a proposed multi- enterprise agreement to cover employees who work in connection with the installation, major modernisation, servicing, repair or maintenance of air-conditioning or ventilation (including apprentices and trainees). Managers, supervisors, estimators and administrative staff are excluded from coverage. [2] The authorisation sought is in relation to each of the following employers (the Employers) and their employees: a. B&L Mechanical Air Services Pty Ltd b. Emax Air Group Pty Ltd c. Fredon Air (NSW) Pty Ltd d. Incore Air NSW Pty Ltd e. Ned Air Pty Ltd f. Quantek Mechanical Pty Ltd g. S&A Solutions Pty Ltd h. Traminer Industries (NSW) Pty Ltd i. TMS Installations Pty Ltd [2024] FWC 395 DECISION -- 1 of 21 -- [2024] FWC 395 2 [3] Each of the Employers supports the making of the authorisation in the terms sought. [4] The Employers are national system employers for the purposes of the FW Act who operate in the heating, ventilation and air conditioning (HVAC) industry. They install HVAC systems such as air handling units, exhaust fans, supply fans, fan core units and associated duct work on a variety of buildings including small shops, high rise buildings and hospitals. [5] They principally operate in the State of New South Wales, in some cases with infrequent secondary operations in the Australian Capital Territory. Each of the Employers employ one or more employees who are covered by the Building and Construction General On-site Award 2020 (Award) and who are members of and represented by the AMWU. Each of the Employers employed less than 50 employees at the time the application was made. The Employers propose to be represented by TMS Installations Pty Ltd in these proceedings and in any bargaining with the AMWU in respect of the Proposed Agreement. The Employers are not engaged in bargaining for an enterprise agreement in respect of any of the employees who would be covered by the Proposed Agreement. [6] For the reasons set out below, I have decided to grant the application and make the authorisation in the terms sought. The hearing [7] The matter was listed for directions on 7 November 2023 and 13 December 2023. Some of the Employers attended the initial directions hearing and advised that they consented to the Application. The employers who did not attend the initial directions hearing were invited to express their views in relation to the application by sending an email to my Chambers by 23 November 2023. The AMWU filed an amended application on 24 November 2023 removing one of the employing entities from the scope of the authorisation. All of the Employers advised that they consent to the application. [8] In response to directions made on 7 November 2023 and 13 December 2023: a. The AMWU and the Employers filed a Statement of Agreed Facts on 29 November 2023. b. The AMWU filed submissions on 11 January 2024. c. The Employers filed submissions in support of the AMWU’s submissions on 12 January 2024. [9] The Australian Council of Trade Unions (ACTU) sought and was granted an opportunity to be heard in relation to the application and filed submissions on 12 January 2024. [10] The matter was listed for hearing on 19 January 2024. I granted the parties permission to be legally represented at the hearing pursuant to s.596 of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, having regard to the complexity of the matter. Mr Leo Saunders of Counsel appeared for the AMWU. Mr Philip Boncardo of -- 2 of 21 -- [2024] FWC 395 3 Counsel appeared for the ACTU. Mr Mimmo Scavera of TMS Installations Pty Ltd represented the Employers. Legislation [11] The relevant legislative provisions in relation to single interest employer authorisations are ss.248-250 of the FW Act. [12] Section 248 sets out the requirements in relation to who may make an application and what the application must specify as follows: 248 Single interest employer authorisations (1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers: (a) those employers; (b) a bargaining representative of an employee who will be covered by the agreement. (2) The application must specify the following: (a) the employers that will be covered by the agreement; (b) the employees who will be covered by the agreement; (c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made. [13] Section 249 sets out the circumstances in which the Commission is required to make a single interest employer authorisation and provides: 249 When the FWC must make a single interest employer authorisation Single interest employer authorisation (1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if: (a) an application for the authorisation has been made; and (b) the FWC is satisfied that: (i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and (ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and (iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and -- 3 of 21 -- [2024] FWC 395 4 (iv) if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and (v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and (vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement. (1AA) If: (a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and (b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made; it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved. Additional requirements for application by employers (1A) The requirements of this subsection are met if: (a) the employers that will be covered by the agreement have agreed to bargain together; and (b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together. Additional requirements for application by bargaining representative (1B) An employer is covered by this subsection if: (a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and (b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and (c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and (d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and (e) subsection (1D) does not apply to the employer. -- 4 of 21 -- [2024] FWC 395 5 (1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate. (1D) This subsection applies to an employer if: (a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or (b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single enterprise agreement that would cover the employer and those employees or substantially the same group of those employees. Franchisees (2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are: (a) franchisees of the same franchisor; or (b) related bodies corporate of the same franchisor; or (c) any combination of the above. Common interest employers (3) The requirements of this subsection are met if: (a) the employers have clearly identifiable common interests; and (b) it is not contrary to the public interest to make the authorisation. (3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following: (a) geographical location; (b) regulatory regime; (c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises. (3AB) If: (a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and (b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made; -- 5 of 21 -- [2024] FWC 395 6 it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved. Calculating number of employees (3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b): (a) employee has its ordinary meaning; and (b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and (c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and (d) associated entities of the employer are taken to be one entity. Operation of authorisation (3) The authorisation: (a) comes into operation on the day on which it is made; and (b) ceases to be in operation at the earlier of the following: (i) at the same time as the enterprise agreement to which the authorisation relates is made; (ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period. [14] Section 249A prohibits the Commission from making a single interest employer authorisation in relation to a proposed enterprise agreement which would cover employees in relation to general building and construction work. It provides: 249A Restriction on making single interest employer authorisations The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work. [15] Section 250 sets out the requirements in relation to the information which must be specified in a single interest employer authorisation as follows: 250 What a single interest employer authorisation must specify What authorisation must specify (1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following: -- 6 of 21 -- [2024] FWC 395 7 (a) the employers that will be covered by the agreement; (b) the employees who will be covered by the agreement; (c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made; (d) any other matter prescribed by the procedural rules. Authorisation may relate to only some of employers or employees (2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only. (4) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that: (a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and (b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and (c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b). (4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation. Evidentiary material [16] The parties rely upon a Statement of Agreed Facts (SOAF) signed by the AMWU and by TMS Installations Pty Ltd on behalf of the Employers. The text of the SOAF is reproduced in full in Attachment A to this decision. The facts stated in the SOAF are about matters known to the AMWU and the Employers. I accept that the SOAF is a reliable evidentiary basis to determine the matter. Consideration [17] This is the second occasion that the Commission has considered an application for a single interest employer authorisation following amendments to the relevant provisions of the FW Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). [18] These amendments were first considered by the Full Bench in Independent Education Union of Australia v Catholic Education Western Australia Limited and others (IEU v CEWA)1 -- 7 of 21 -- [2024] FWC 395 8 and I rely upon what is said in that decision. Like the current application, the application in IEU v CEWA proceeded with the support of each of the respondent employers. [19] I have addressed each of the applicable requirements below. Section 249(1)(a) — Whether an application has been made [20] The requirement for an application to have been made suggests that the application must be validly made in accordance with the applicable statutory requirements.2 The application has been made by the AMWU, an employee organisation for the purposes of the FW Act which is entitled to represent the industrial interests of the employees of the Employers.3 The AMWU is a bargaining representative of at least one employee covered by the Agreement pursuant to s.248(1)(b) and therefore has standing to make the application. The amended application meets the requirements of s.248(2) as it specifies the employers and employees covered by the Agreement, and that TMS Installations Pty Ltd is nominated by the employers to make applications under the FW Act if the authorisation is made. The Employer are all corporations and therefore national system employers within the meaning of s 14 of the FW Act. I am therefore satisfied that a valid application for the authorisation has been made as required by s.249(1)(a). Applicable requirements of s 249(1)(b) [25] The requirements of s 249(1)(b) which I must be satisfied of in this case are those provided in subparagraphs (i), (ii), (iv), (v) and (vi). The requirement in subparagraph (iii) is not relevant to my consideration because the application was not made by two or more employers. Section 249(1)(b)(i) — Are at least some of the employees who will be covered by the Agreement represented by an employee organisation? [21] I am satisfied that at least some of the employees who will be covered by the Proposed Agreement are represented by the AMWU as required by s.249(1)(b)(i).4 Section 249(1)(b)(ii) — Have the employers and bargaining representatives of the employees had the opportunity to express their views? [22] I issued directions on 7 November and 13 December 2023 which afforded the Employers the opportunity to advise whether they consent to the amended application and for the parties to file submissions and other material. The AMWU and the Employers filed submissions supporting the making of the declaration and the SOAF indicating that the Employers consent to the declaration being made. There is no indication that there are any bargaining representatives other than the AMWU for the Agreement. I am therefore satisfied that the Employers and the bargaining representatives of the employees of those Employers have had the opportunity to express to the Commission their views on the authorisation as required by s.249(1)(b)(ii). Section 249(1)(b)(iv) — Has each employer consented to the application or is covered by subsection (1B)? -- 8 of 21 -- [2024] FWC 395 9 [23] The requirements of s. 249(1)(b)(iv) are met as each employer has consented to the amended application5 so it is not necessary for me to consider subsection (1B). Section 249(1)(b)(v) — Have the requirements of either ss 249(2) or 249(3) been met? [24] Section 249(2) deals with employers who carry on business activities under the same franchises which is not applicable to the current application. Section 249(3) requires satisfaction of two requirements, that the employers have readily identifiable common interests and that it is not contrary to the public interest to make the authorisation. Section 249(3)(a) - Do the employers have readily identifiable common interests? [25] The matters which may be relevant to determining whether the Employers have common interests under s. 249(3A) include geographical location, regulatory regime and the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises. [26] Section 249(3AB) provides that if an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made, it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved. As each of the Employers employs less than 50 employees,6 s.249(3AB) does not apply to the current application. Submissions [27] The AMWU submitted that although the list in s.249(3A) is non-exhaustive, it supports an interpretation of ‘common interests’ that requires a degree of identifiable similarity in operation within an industry or industry sector. The inclusion of the subphrase ‘readily identifiable’ further indicates a degree of particularity is required; something common to ‘this group’. It will be sufficient if the Commission is satisfied that each entity will be affected by economic, regulatory or industrial movements within their subsector in the same or similar manner. [28] The ACTU submits that the phrase ‘common interests’ does not require the Commission to find that there are a range or raft of interests which the employers have in common. Rather, the Commission need only be satisfied that there exist some (i.e. more than one) common interests as between the employers the subject of the proposed agreement. [29] Employers are not required to be ‘like-for-like’ employers, or have identical interests, in order for them to be ‘common interest’ employers. The requirement that such common interests be ‘clearly identifiable’ means that the interests be able to be detectable or capable of being recognised in a plain or apparent way. [30] The ACTU contends that employers may have ‘common interests’ if there is similarity in matters such as: • the industry in which the employers operate; • the market or markets they sell their products or provide their services to; -- 9 of 21 -- [2024] FWC 395 10 • the geographical location of their operations; • the regulatory regimes which apply to their operations; • applicable industrial regulation including: (i) whether the employers and their employees are covered by the same modern award or would, absent enterprise agreement coverage be covered by the same award; or (ii) by enterprise agreement coverage, including whether such agreements provide similar or equivalent conditions; • characteristics of their workforces, including but not limited to: (i) the skills, qualifications or experience of employees; (ii) the nature of the engagement of employees (i.e. whether and (iii) whether the employers’ respective workforces are itinerant and fluctuating or otherwise; • commonality of labour pools from which their workforces are drawn; • membership of industry associations or peak employer organisations; • overlapping or similar customers or principal contractors or potential customers or principal contractors; • tendering practices; and • funding or income sources, including if they are recipients of government or non- government grants or funding. [31] Further, the fact that the Employers have indicated a wish and determination to bargain together by consenting to a single interest employer authorisation is itself a readily identifiable common interest. Determining that their respective interests will be best advanced by bargaining together is a relevant ‘common interest’ for the purposes of s.249(3) of the FW Act. [32] In the current application, the Employers have clearly identifiable common interest in circumstances where they: • perform work in the same industry; • are members of the same industry association; • tender for the same or similar work and provide tenders in a similar manner; • often perform work on the same worksites; • employ employees with similar or equivalent qualifications and specialisations; • are subject to the same regulatory standards in relation to their performance of work; • perform work contract to contract, meaning there is a high turnover of employees, with the employment of their employees being relatively itinerant in nature; and • often hire employees from the same pool of workers. Findings [33] Each of the respondent employers in IEU v CEWA7 employed 50 employees or more at the time that the application was made with the result that s.249(3AB) applied to the Full Bench’s consideration of s.249(3). Even without reliance on s.249(3AB), the Full Bench -- 10 of 21 -- [2024] FWC 395 11 indicated that they would have been positively satisfied that the requirements in s 249(3) were met on the basis of the material before them.8 In doing so, the Full Bench adopted the following approach of the Full Bench in Application by UWU, AEU and IEU9in relation to the meaning of the expression ‘common interests’ in s.243(1)(b)(ii) and (2) given the commonality of language used in those provisions and in s.249(3)(a) and (3A): …the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non- exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.10 [34] The SOAF establishes that the Employers have recognisable related or like characteristics in relation to the matters referred to in s.249(3A) namely: • geographical location in that they principally operate in the State of New South Wales;11 • regulatory regime in that they are are required to comply with various Australian Standards when performing HVAC work;12 • the nature of the enterprises to which the agreement will relate in that they all operate in the HVAC industry,13 are all members of the HVAC Manufacturing Installation Association,14 employ workers from the same labour pool15 and are often subject to the same process in tendering for and the performance of HVAC work;16 • the terms and conditions of employment in those enterprises in that employees are covered by the Building and Construction General On-site Award 2020 (Award)17 and fall within the same or very similar classification structures.18 [35] The SOAF also establishes that the Employers have additional recognisable concerns which can be regarded as joint or shared, including that: • some companies in the HVAC industry engage workers as contractors rather than employees,19 provide inadequate training and do not adhere to applicable quality and safety standards in order to reduce costs, such that they are able to make a more attractive offer than the Employers for their services during the tendering process.20 • The Employers perform work contract to contract, so there is a high turnover of employees, and the employment of their employees is relatively itinerant in nature.21 [36] I accept that all of these matters and the fact that the Employers have indicated they want to bargain together by consenting to a single interest employer authorisation establish that the Employers have readily identifiable common interests. Section 249(3)(b) - Is it contrary to the public interest to make the authorisation? -- 11 of 21 -- [2024] FWC 395 12 Submissions [37] The ACTU submitted that s.249(3)(b) requires the Commission to be satisfied of a negative, that the making the proposed authorisation is not contrary to the public interest. The Commission does not need to be satisfied that making the authorisation is in the public interest. Rather, there must be a sound and tangible evidentiary basis for a conclusion that making an authorisation is antithetical to the public interest. [38] There is nothing in the materials before the Commission that would enable it to be satisfied that it is not in the public interest that the single interest authorisation sought by the AMWU be made. It is difficult to apprehend how or why it would not be contrary to the public interest for a single interest authorisation to be made, particularly if the Commission is satisfied that the employers the subject of the application have ‘common interests’ and operations and business activities which are reasonably comparable. In such circumstances, a single interest authorisation would plainly be congruent with the public interest and object of enabling collective bargaining geared towards achieving productivity and fairness by: • ensuring a commonality of wages and conditions across the enterprises of multiple employers, thus avoiding a race to the bottom on wages and competition as between employers; • encouraging productivity by encouraging innovation and efficiency in the enterprises of employers who would compete for business and work other on wage rates and employment conditions; and • reducing industrial disputation and ensuring industrial harmony amongst employees across multiple enterprises in circumstances where other equivalent, similar or like employers provide their employees the same terms and conditions of employment. Findings [39] I accept the submissions of the ACTU that there is no evidence to establish that it is contrary to the public interest to make the single interest authorisation sought by the AMWU. As such, I find that the requirements of s.249(3)(b) are met. Section 249(1)(vi) if the requirements of subsection (3) are met—are the operations and business activities of each of those employers reasonably comparable with those of the other employers that will be covered by the agreement? [40] Section 249(1AA) provides that if an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made, it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement unless the contrary is proved. As each of the Employers employs less than 50 employees, s.249(1AA) does not apply to the current application. -- 12 of 21 -- [2024] FWC 395 13 Submissions [41] The ACTU submitted that the Commission does not need to be satisfied that the operations and business activities of the employers are, in fact, comparable. Rather, it must be satisfied that they are reasonably comparable. The adverb ‘reasonably’ means ‘fairly’, ‘logically’ or ‘rationally’. [42] The requirement for the ‘operations and business activities’ to be ‘reasonably comparable’ is not an overly stringent or strenuous one to surmount. It would not, for instance, require that the operations and business activities be identical or functionally equivalent or identical (such as the businesses the subject of the present application). What is required is a conclusion that the manner in which the employers operate and the activities of their enterprises be fairly or logically or rationally comparable. [43] The AMWU submitted that the enterprises are functionally identical so the criterion of ‘reasonable comparability’ is comfortably satisfied. The enterprises operated by the Employers: a. principally operate in New South Wales; b. are of like size; c. operate, and compete within, a specific sub-sector of the metal trades industry; d. are subject to the same regulatory regime; e. are in large part covered by the same award, with limited enterprise bargaining; f. are members of the HVAC Manufacturing Installation Association; and g. share a common labour pool. Findings [44] I accept the submissions of the ACTU that s.249(1)(vi) requires a conclusion that the manner in which the employers operate, and the activities of their enterprises are fairly or logically or rationally comparable. It is not necessary for the businesses to be identical. [45] In the current application, I accept the parties’ submissions that the operations and business activities of the Employers are reasonably comparable and that the requirements of s.249(1)(vi) are met. 249A—the agreement would not cover employees in relation to general building and construction work [46] Section 249A prevents the Commission from making a single interest authorisation if the proposed agreement would cover employees in relation to general building and construction work. -- 13 of 21 -- [2024] FWC 395 14 [47] Section 23B of the FW Act defines general building and construction work as follows: 23B Meaning of general building and construction work (1) Work is general building and construction work if: (a) the work is done, onsite, by an employee in the industry of: (i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General On-site Award 2020 as in force at the applicable time; or (ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General On-site Award 2020 as in force at the applicable time; and (b) the work is not any of the following: (ii) work in the industry of metal and engineering construction within the meaning of paragraph 4.3(c) of the Building and Construction General On-site Award 2020 as in force at the applicable time; (iii) work in manufacturing and associated industries and occupations within the meaning of clause 4.8 of the Manufacturing and Associated Industries and Occupations Award 2020 as in force at the applicable time; (iv) the work of an employee who is covered by the Joinery and Building Trades Award 2020, as in force at the applicable time, in relation to the work; (v) work in the industry of electrical services, within the meaning of clause 4.3 of the Electrical, Electronic and Communications Contracting Award 2022 as in force at the applicable time, provided -- 14 of 21 -- [2024] FWC 395 15 by electrical, electronics and communications contractors and their employees; (vi) work that is plumbing, or fire sprinkler fitting, within the meaning of clause 4.2 of the Plumbing and Fire Sprinklers Award 2020 as in force at the applicable time; (vii) work in the black coal mining industry within the meaning of clause 4.2 of the Black Coal Mining Industry Award 2020 as in force at the applicable time; (viii) work in the mining industry within the meaning of clause 4.2 of the Mining Industry Award 2020 as in force at the applicable time; (ix) work in the quarrying industry within the meaning of clause 4.3 of the Cement, Lime and Quarrying Award 2020 as in force at the applicable time; (x) work in the concrete products industry within the meaning of clause 4.2 of the Concrete Products Award 2020 as in force at the applicable time; (xi) work in the premixed concrete industry within the meaning of clause 4.2 of the Premixed Concrete Award 2020 as in force at the applicable time; (xii) work in connection with the installation, major modernisation, servicing, repair or maintenance of lifts and escalators, or air-conditioning or ventilation; (xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time; (xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General On-site Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity. (2) The applicable time is the start of the day before this section commences. [48] I am satisfied that the proposed agreement would not cover employees in relation to general building and construction work because the exception under s.23B(1)(b)(xii) applies given that the work is in connection with the installation, major modernisation, servicing, repair or maintenance of air-conditioning and ventilation. Conclusion [49] I am satisfied in relation to each of the applicable requirements in s.249(1), and that the restriction in s.249A does not apply. I am therefore required to make the single interest employer authorisation sought. The authorisation is made by a separate order that is published in conjunction with this decision and which specifies the matters required by s.250, as applicable. In accordance with s.249(4), the authorisation will operate from the date of this decision. -- 15 of 21 -- [2024] FWC 395 16 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR771437> -- 16 of 21 -- [2024] FWC 395 17 Attachment A: Statement of Agreed Facts A. Introduction 1. On 6 November 2023, the AMWU made an application for a single interest employer authorisation pursuant to s.248 of the Fair Work Act 2009 (Cth) (FW Act). 2. The AMWU subsequently filed an amended application on 24 November 2023, which removed one of the employing entities from the scope of the authorisation (Amended Application). 3. The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement to cover employees who are principally engaged in connection with the installation, major modernisation, servicing, repair or maintenance of air‑conditioning or ventilation, including apprentices and trainees, but excluding managers, supervisors, estimators and administrative staff (Proposed Agreement). 4. In particular, the AMWU seeks authorisation for the commencement of bargaining with the entities listed in Schedule A of the Amended Application (Entities). 5. The application is made by consent between the AMWU and the Entities. B. Background 6. The AMWU is: (a) an employee organisation for the purposes of the FW Act; and (b) entitled to represent the industrial interest of the employees of the Entities. 7. Each of the Entities: (a) are national system employers for the purposes of the FW Act; (b) operate in the heating, ventilation and air conditioning (HVAC) industry; (c) principally operate in the State of New South Wales, in some cases with infrequent secondary operations in the Australian Capital Territory; (d) employ one or more employees: (i) who are covered by the Building and Construction General On-site Award 2020 (Award); (ii) to whom the Award applies; and (iii)who are members of and represented by the AMWU. -- 17 of 21 -- [2024] FWC 395 18 (e) employed less than 50 employees at the time the Amended Application was made; (f) proposes to be represented by TMS Installations Pty Ltd in these proceedings and in any bargaining with the AMWU in respect of the Proposed Agreement; (g) is not engaged in bargaining for an enterprise agreement in respect of any of the employees who would be covered by the Proposed Agreement. 8. None of the employees who would be covered by the Proposed Agreement are engaged in relation to ‘general building and construction work’ for the purposes of the FW Act. 9. No application has been made pursuant to s.248 of the FW Act by any of the Entities for a single interest employer authorisation in respect of the employment to which the Proposed Agreement would apply. 10. The person nominated by the Entities to make applications pursuant to the FW Act is TMS Installations Pty Ltd. Current single-enterprise agreements 11. There are currently five single-enterprise agreements which cover and apply to the following entities and their employees, namely the: (a) B & L Mechanical Air Services Pty Ltd & CEPU Plumbing Division – Tweed Heads Hospital Mechanical Greenfields Agreement 2021, which nominally expired on 30 September 2023. This enterprise agreement related to a specific project, being the Tweed Heads Hospital, which will cease on or around Friday, 1 December 2023. As the project is nearing its completion, there are only two employees who remain employed by B & L Mechanical Pty Ltd performing work under that agreement. From 1 December 2023, no further work will be performed and B & L Mechanical Pty Ltd will no longer employ anyone with respect to this project or under this enterprise agreement; (b) B & L Mechanical Air Services Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2022 – 2023, which nominally expires on 30 November 2023; (c) Fredon Air NSW Ply Ltd On-Site Construction HVAC Workers NSW Enterprise Agreement 2020-2023, which nominally expires 20 December 2023; (d) Traminer Industries (NSW) Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020-2023, which nominally expires on 30 November 2023; and (e) Upside Air Group Pty Ltd / AMWU On-Site Construction HVAC Workers NSW Enterprise Agreement 2020 – 2023, which nominally expires on 30 November 2023. -- 18 of 21 -- [2024] FWC 395 19 Nature of HVAC work 12. Each of the Entities employ persons who are engaged in connection with the installation, major modernisation, servicing, repair or maintenance of air‑conditioning or ventilation. 13. The Entities: (a) install HVAC systems such as air handling units, exhaust fans, supply fans, fan core units and associated duct work on a variety of buildings (e.g. small shops, high rise buildings, hospitals etc.); (b) are all members of the HVAC Manufacturing Installation Association; (c) are often subject to the same process in tendering for and the performance of HVAC work, namely: (i) various builders will tender for a particular project such that they are awarded the contract to perform the relevant building work; (ii) upon being awarded the contract and depending on the nature of the project, the relevant builder then engages various mechanical contractors and, for example, provides them with the design, drawings and specifications of the project; (iii)mechanical contractors then seek tenders from HVAC companies, such as the Entities, engaged in the installation of HVAC systems. As a result, it is commonplace for many of the Entities to be engaged on the same project, whereby they perform the same work on different components of the project; and (d) engage employees that fall within the same or very similar classification structures. For example, each of the Entities engage sheet metal workers who are all required to have completed a light fabrication apprenticeship. 14. The Entities are required to comply with various Australian Standards when performing HVAC work, for example: (a) AS 4254-2002 – Ductwork for air-handling systems in buildings; (b) AS 1668.1:2015 – The use of ventilation and air conditioning in buildings, Part 1: Fire and smoke control in buildings; (c) AS 1668.2-2012 – The use of ventilation and air-conditioning in buildings, Part 2: Mechanical ventilation in buildings; and (d) AS 1682.2:2015 – Fire, smoke and air dampers installation. 15. The nature of the HVAC work and the tendering process described above has had the effect of creating a transient and insecure workforce in the HVAC industry. -- 19 of 21 -- [2024] FWC 395 20 16. Features of employment in the industry include that: (a) it is common for employees to change employment between HVAC employers such as the Entities (and others in the industry) depending on whether the relevant entity has successfully tendered for a contract. As result, the Entities, and other employers within the industry often hire from the same labour pool; (b) given ongoing employment or engagement within the HVAC industry can be contingent upon whether contracts are awarded to employing entities, there is a high turnover rate due to job insecurity and workers often leave the industry; (c) it is a common practice for some companies to engage workers as contractors to avoid: (i) paying payroll tax and group tax; and (ii) conferring those workers with the benefits of being an employee, such as annual leave, personal/carer’s leave, workers compensation, redundancy, superannuation and top-up insurance for non-work related injuries. To that end, a significant portion of the employees engaged in the HVAC industry are of non-English speaking background and are exploited; and (d) for many companies in the HVAC industry, it is common practice not to: (i) provide adequate training to workers, or otherwise ensure workers are properly qualified to perform HVAC work; (ii) adhere to applicable quality and safety standards; and/or (iii) engage workers as employees as noted above, in order to reduce costs such that are able to make a more attractive offer for their services during the tendering process. 1 [2023] FWCFB 177. 2 Ibid, [24]; Application by UWU, AEU and IEU [2023] FWCFB 176, [29]. 3 SOAF, [6]. 4 Ibid, [7(d)(iii)]. 5 Ibid, [5]. 6 Ibid, [7(e)]. 7 [2023] FWCFB 177. 8 Ibid, [30]. 9 [2023] FWCFB 176 10 Ibid, [34]. 11 SOAF, [7(c)]. 12 Ibid, [14]. -- 20 of 21 -- [2024] FWC 395 21 13 Ibid, [7(b)], [13(a)]. 14 Ibid, [13(b)]. 15 Ibid, [16(a)]. 16 Ibid, [13(c)]. 17 Ibid, [7(d)(i)-(ii)]. 18 Ibid, [13(d)]. 19 Ibid, [16(c)]. 20 Ibid, [16(d)]. 21 Ibid, [16(b)]. -- 21 of 21 --