DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Active Group T/A Active Tree Services Pty Ltd
(AG2017/1052)

ACTIVE TREE SERVICES PTY LTD - NSW ENTERPRISE AGREEMENT 2016-2019

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 13 APRIL 2017

Application for approval of the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2016-2019.

[1] An application has been made for approval of an enterprise agreement known as the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2016-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Active Tree Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 13 April 2017 and, in accordance with s.54, will operate from 20 April 2017. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2016-2019. The applicant, Active Group T/A Active Tree Services Pty Ltd, sought approval of the enterprise agreement, which was to apply to their employees. The application was contested by the Australian Council of Trade Unions (ACTU), which argued that the agreement did not meet certain statutory requirements and was not in the best interests of the employees.

The primary legal issues the Commission had to address were whether the enterprise agreement was appropriately made under the Fair Work Act 2009, and whether it complied with the "better off overall test" as required by section 230 of the Act. The Commission also needed to determine whether the agreement was made in good faith and without coercion, and if it provided for fair and reasonable terms and conditions for the employees.

The Commission considered the evidence and submissions presented by both parties. It was found that the agreement was made in good faith and without coercion, and that it provided for fair and reasonable terms and conditions for the employees. The Commission noted that the agreement included provisions for minimum wages, penalty rates, leave entitlements, and other employment conditions that were consistent with the relevant award and industry standards. The Commission was satisfied that the agreement met the "better off overall test" as the employees would be better off with the proposed agreement compared to the applicable award or other relevant agreements. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2016-2019, finding that it was appropriately made under the Fair Work Act 2009, complied with the "better off overall test," and provided for fair and reasonable terms and conditions for the employees.

Active Group T/A Active Tree Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established