Asplundh Tree Expert (Australia) Pty Ltd

[2024] FWCA 1487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Asplundh Tree Expert (Australia) Pty Ltd

(AG2024/981)

ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LTD NSW ENTERPRISE AGREEMENT – 2023 - 2026

Electrical contracting industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 22 APRIL 2024

Application for approval of the Asplundh Tree Expert (Australia) Pty Ltd NSW Enterprise Agreement – 2023 - 2026

Introduction

Asplundh Tree Expert (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Asplundh Tree Expert (Australia) Pty Ltd NSW Enterprise Agreement – 2023 - 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 13 January 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 14 March 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

The Applicant incorrectly completed and lodged the Form F17B. The correct form for agreement applications with a notification date prior to 6 June 2023, and an agreement which is made on or after 6 June 2023, is a Form F17A. I am satisfied that the irregularity in the form should be waived and that it is appropriate to do so, pursuant to s.586(b) of the Act.

Model Consultation Terms

The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

National Employment Standards (NES) precedence term

Clause 6.6 of the Agreement provides for 10 days of paid personal/carer’s leave. The Agreement is silent as to the additional two days of unpaid carer’s leave where this entitlement has been exhausted, as is provided for pursuant to ss.102 and 103 of the Act, and accordingly may be inconsistent with the NES.

Clause 2.5.4 provides that if the employee fails to give the required notice of termination to the Employer, the Employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 4.4 does not appear to limit the source of the monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination), which may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

I note that in accordance with the NES precedence term in Clause 1.9 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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 CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 April 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The case involved Asplundh Tree Expert (Australia) Pty Ltd, which sought approval for its New South Wales Enterprise Agreement for the period 2023 to 2026. The matter was heard in the Fair Work Commission, where the company argued that the proposed agreement was fair and appropriate for its employees. The dispute centred on whether the terms of the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements for approval. This involved examining whether the agreement was made in good faith, whether it covered a suitable bargaining group, and if the terms were fair and reasonable. The Commission also needed to determine whether the agreement provided adequate protections for employees, including minimum rates of pay, leave entitlements, and other conditions of employment.

The Commission carefully considered the submissions and evidence provided by both parties. It found that the agreement was made in good faith and covered an appropriate bargaining group. The Commission also concluded that the terms of the agreement were fair and reasonable, providing adequate protections for employees. Given these findings, the Commission approved the enterprise agreement, finding it met the necessary criteria under the Fair Work Act. This decision ensures that the agreement is legally binding and enforceable between the company and its employees for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established