Ar Environmental T/A Ar Environmental Pty Ltd

[2024] FWCA 4216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ar Environmental T/A Ar Environmental Pty Ltd

(AG2024/4213)

AR ENVIRONMENTAL ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 29 NOVEMBER 2024

Application for approval of the AR Environmental Enterprise Agreement 2024

Ar Environmental T/A Ar Environmental Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AR Environmental Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 17 May 2024 and the Agreement was made on 11 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

The employer provided to the employees the pre-June 2023 version of the Notice of Employee Representational Rights (NERR). Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

The Agreement was approved on 29 November 2024 and, in accordance with s.54, will operate from 6 December 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between Ar Environmental T/A Ar Environmental Pty Ltd and its employees, represented by the Building Construction, Forestry, Maritime, Mining and Energy Union (the Union). The dispute centred on the application for approval of the AR Environmental Enterprise Agreement 2024. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement contained the necessary procedural fairness provisions, was free from any prohibited content, and whether it had been negotiated in good faith. Additionally, the Commission considered whether the agreement provided for appropriate dispute resolution mechanisms. The Union raised concerns about the procedural fairness of the agreement, arguing that it did not adequately provide for the negotiation process and the employees' right to be heard.

In rendering its decision, the Commission first assessed the procedural fairness provisions of the agreement. The Commission found that the agreement contained provisions that allowed for employees to be involved in the negotiation process and to have their voices heard. It determined that these provisions met the statutory requirements for procedural fairness. The Commission also examined the content of the agreement to ensure it did not include any prohibited terms, such as those that would undermine the rights of employees. Finding no such terms, the Commission ruled that the agreement was free from prohibited content. Regarding good faith, the Commission concluded that the negotiation process, as evidenced by the documentation and submissions, was conducted in good faith. Finally, the Commission confirmed that the agreement included adequate provisions for dispute resolution, which aligned with the requirements of the Act.

Given the findings, the Commission approved the AR Environmental Enterprise Agreement 2024. This decision was based on the agreement's compliance with the statutory requirements for procedural fairness, absence of prohibited content, and provision of appropriate dispute resolution mechanisms. The approval of the agreement ensures that it will now govern the employment terms and conditions of the employees of Ar Environmental T/A Ar Environmental Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established