Active Tree Services Pty Ltd

[2014] FWCA 2526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Active Tree Services Pty Ltd
(AG2014/713)

ACTIVE TREE SERVICES PTY LTD - NSW ENTERPRISE AGREEMENT 2013 - 2016

Electrical contracting industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 15 APRIL 2014

Application for approval of the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The agreement does not contain a consultation term with the content required by s.205(1) and (1A). Accordingly, in accordance with s.205(2), the model consultation term contained in Schedule 2.3 of the Fair Work Regulations 2009 is taken to be a term of the agreement.

[4] 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. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved. In accordance with s.54(1) it will operate from 22 April 2014. The nominal expiry date of the Agreement is30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Active Tree Services Pty Ltd and its employees. The company sought approval for its Enterprise Agreement 2013 - 2016, which it had negotiated with its employees. The dispute centred on whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement was a "better off overall test" (BOOT) agreement, meaning that it was considered to be more advantageous for the employees than the applicable award or safety net.

The legal issues before the Commission were primarily concerned with whether the agreement complied with the requirements of the Fair Work Act. This included whether the agreement contained all the mandatory terms and conditions as stipulated by the Act, and whether it met the BOOT criteria. The Commission also needed to ensure that the agreement was not contrary to public policy and that it had been genuinely negotiated between the parties.

The Fair Work Commission found that the agreement met all the necessary criteria for approval. The Commission was satisfied that the agreement contained all the mandatory terms and conditions required by the Fair Work Act, and that it was a BOOT agreement. The Commission also concluded that the agreement was not contrary to public policy and that it had been genuinely negotiated between the parties. Therefore, the Commission approved the agreement, which will now be in effect for the period of 2013 to 2016.

The final orders of the Commission were that the Active Tree Services Pty Ltd - NSW Enterprise Agreement 2013 - 2016 be approved as a registered agreement under section 173 of the Fair Work Act 2009. The agreement will now be binding on all employees of Active Tree Services Pty Ltd and will replace any previous agreements in place. The approval of the agreement ensures that the employees of Active Tree Services Pty Ltd will receive the terms and conditions outlined in the agreement, which are considered to be more advantageous than the applicable award or safety net.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established