Activ Foundation Incorporated

[2013] FWCA 2298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Activ Foundation Incorporated
(AG2013/811)

ACTIV FOUNDATION INC. TRANSPORT WORKERS AGREEMENT 2012

Passenger vehicle transport (non rail) industry
COMMISSIONER WILLIAMS	PERTH, 16 APRIL 2013

Application for approval of the Activ Foundation Inc. Transport Workers Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Activ Foundation Inc. Transport Workers Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Activ Foundation Incorporated. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 April 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Activ Foundation Incorporated applied for the approval of the Activ Foundation Inc. Transport Workers Agreement 2012. The applicant sought to have the agreement certified as a Green Fields Agreement, as defined in section 228 of the Fair Work Act 2009. This was to enable the agreement to be applied to employees of Activ Foundation Incorporated who were previously employed by Transdev Sydney Ferries Limited. The dispute centred on whether the agreement satisfied the criteria for certification as a Green Fields Agreement, specifically if the agreement was made in good faith and if it contained the minimum terms and conditions as required by the Fair Work Act.

The central legal issue before the Commission was whether the proposed agreement fulfilled the requirements for certification as a Green Fields Agreement. This involved assessing if the agreement was genuinely made in good faith and whether it provided for the minimum terms and conditions as outlined by the Fair Work Act. The Commission needed to consider the evidence and submissions provided by both parties to determine if the agreement was compliant with the statutory requirements.

The Commission examined the evidence and submissions and concluded that the proposed agreement did not meet the statutory requirements for certification as a Green Fields Agreement. The Commission found that the agreement was not made in good faith, and it did not provide for the minimum terms and conditions as mandated by the Fair Work Act. Consequently, the application for approval was dismissed. The decision was based on the evidence presented, which did not support the applicant's claims of good faith and compliance with the statutory minimum terms and conditions.

The Fair Work Commission dismissed the application for approval of the Activ Foundation Inc. Transport Workers Agreement 2012 as a Green Fields Agreement. The Commission found that the agreement did not meet the statutory requirements for certification. The decision was based on the evidence that the agreement was not made in good faith and did not provide for the minimum terms and conditions as required by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established