Active Contracting Pty Ltd ATF Active Contracting Unit Trust

[2023] FWCA 3054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Active Contracting Pty Ltd ATF Active Contracting Unit Trust

(AG2023/3034)

ACTIVE TREE SERVICES PTY LTD & ETU NSW ENTERPRISE AGREEMENT 2023-2026

Gardening services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 20 SEPTEMBER 2023

Application for approval of the Active Tree Services Pty Ltd & ETU NSW Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Active Tree Services Pty Ltd & ETU NSW Enterprise Agreement 2023-2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Active Contracting Pty Ltd ATF Active Contracting Unit Trust (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that Clause 1.9 of the Agreement provides that this Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is inconsistency between the terms of this Agreement and the NES, and the NES provides greater benefit to an employee, the NES provision will apply to the extent of the inconsistency.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 20 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved Active Contracting Pty Ltd, acting through the Active Contracting Unit Trust, which applied for the approval of the Active Tree Services Pty Ltd and ETU NSW Enterprise Agreement 2023-2026. This application was brought under the Fair Work Act 2009, with the dispute centring on whether the terms of the proposed agreement met the legal requirements for approval and whether it complied with the statutory criteria set out in the legislation. The Fair Work Commission was the forum where the application was made and adjudicated.

The primary legal issues for the court to decide were whether the agreement was a genuine enterprise agreement, if it contained terms that complied with the Fair Work Act, and if it had been appropriately negotiated. Key considerations included the scope of the bargaining representatives, the fairness of the terms, and the adherence to procedural requirements. The court had to examine if the agreement was made in good faith and if it was genuinely intended to be an enterprise agreement, as well as ensuring the agreement was not contrary to public policy.

The Fair Work Commission, in deliberating on the application, thoroughly assessed the negotiation process and the content of the agreement. It was determined that the agreement was indeed a genuine enterprise agreement, as it had been negotiated in good faith by the authorised bargaining representatives and met all the statutory criteria. The Commission found that the terms were fair and reasonable and did not contravene any provisions of the Fair Work Act. Consequently, the application was approved, and the agreement was registered.

The final orders of the Commission included the approval and registration of the Active Tree Services Pty Ltd and ETU NSW Enterprise Agreement 2023-2026, effective from the date of the decision. The agreement was to be binding on all parties involved, as per the provisions of the Fair Work Act. The decision affirmed the legitimacy of the bargaining process and the terms negotiated, providing clarity and certainty for the parties moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established