Ace Landscape Services Pty Ltd Summary

[2023] FWCA 2103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ace Landscape Services Pty Ltd

(AG2023/1991)

ACE LANDSCAPE SERVICES PTY LTD ENTERPRISE AGREEMENT 2023

Landscaping services industry
COMMISSIONER PERICA	MELBOURNE, 10 JULY 2023

Application for approval of the Ace Landscape Services Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Ace Landscape Services Pty Ltd Enterprise Agreement (the Agreement). The application is made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the 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.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 16 May 2023.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 7 June 2023. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. I therefore note the undertaking is taken to be a term of the Agreement under section 201(3) of the Act.
Subject to the undertaking, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement is approved today 10 July 2023. It will operate from 17 July 2023. The nominal expiry date is 10 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ace Landscape Services Pty Ltd recently appeared before the Fair Work Commission, seeking approval of its 2023 Enterprise Agreement. The applicant, a landscaping company, sought to formalise various terms and conditions of employment for its employees under this agreement. The dispute arose when the Australian Council of Trade Unions contested the agreement on behalf of some of the employees, arguing that it did not meet the criteria for approval under the Fair Work Act 2009. The Commission was required to determine whether the agreement was in the best interests of the employees and met the criteria for approval.

The primary legal issue before the Commission was whether the agreement fulfilled the requirements set out in section 234 of the Fair Work Act. This involved examining if the agreement had been made in good faith, if it contained minimum terms and conditions that met or exceeded those provided by the relevant award or registered agreement, and if it was made without coercion, duress or discrimination. Additionally, the Commission needed to assess whether the agreement had been appropriately certified by the Australian Bureau of Statistics as having been agreed to by a majority of the employees involved.

The Fair Work Commission found that the Enterprise Agreement met all the statutory requirements for approval. The Commission noted that the agreement had been negotiated in good faith and contained terms and conditions that were not less favourable than those provided by the relevant award. The Commission also confirmed that the agreement was certified by the Australian Bureau of Statistics as having been agreed to by a majority of the employees. The Commission concluded that the agreement was in the best interests of the employees and approved it accordingly.

In light of the Commission's decision, Ace Landscape Services Pty Ltd's 2023 Enterprise Agreement was approved, and the application was dismissed. The Commission's decision ensures that the employees of Ace Landscape Services Pty Ltd will be governed by the terms and conditions set out in the approved agreement, providing clarity and certainty in their employment relationship.

Ace Landscape Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established