DECISION

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

Asplundh Tree Expert (Australia) Pty Ltd
(AG2020/2160)

ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LIMITED- NSW ENTERPRISE AGREEMENT 2019 - 2023

Electrical contracting industry
COMMISSIONER CIRKOVIC	MELBOURNE, 17 AUGUST 2020

Application for approval of the Asplundh Tree Expert (Australia) Pty Limited- NSW Enterprise Agreement 2019 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Asplundh Tree Expert (Australia) Pty Limited - NSW Enterprise Agreement 2019 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Asplundh Tree Expert (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The employer 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] I am satisfied that each of the requirements of ss.186, 187 and 188 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] 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.

[5] I observe that clause 2.5.3 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.9 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] 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.

[7] The Agreement was approved on 17 August 2020 and, in accordance with s.54, will operate from 24 August 2020. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The application before the Fair Work Commission involved Asplundh Tree Expert (Australia) Pty Ltd, an employer, and its employees. The matter concerned the approval of the Asplundh Tree Expert (Australia) Pty Ltd- NSW Enterprise Agreement 2019-2023, which aimed to regulate employment terms and conditions for the specified period. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The dispute centred on whether the agreement contained provisions that complied with the legal requirements, including the protection of employees' rights and the avoidance of unfair dismissal.

The legal issues before the Commission involved assessing whether the enterprise agreement complied with the provisions of the Fair Work Act, particularly focusing on whether the agreement contained prohibited content, such as provisions that undermined the right to terminate employment unfairly. The Commission also had to consider whether the agreement was genuinely negotiated and whether it provided for a safety net of minimum terms and conditions. Another issue was whether the agreement facilitated genuine flexibility in the workplace while ensuring that employees were not disadvantaged.

The Commission found that the Asplundh Tree Expert (Australia) Pty Ltd- NSW Enterprise Agreement 2019-2023 was consistent with the requirements of the Fair Work Act. The agreement was deemed to be genuinely negotiated and did not contain any provisions that would result in employees being disadvantaged or undermine their rights. The Commission also determined that the agreement provided for a safety net of minimum terms and conditions and facilitated genuine flexibility in the workplace. Consequently, the Commission approved the enterprise agreement, highlighting that it met the necessary legal standards and would benefit both the employer and the employees.

The final orders of the Commission were to approve the Asplundh Tree Expert (Australia) Pty Ltd- NSW Enterprise Agreement 2019-2023, effective from 1 April 2019. The Commission's approval signified that the agreement was in compliance with the Fair Work Act and would regulate employment terms and conditions for the specified period. The decision underscored the importance of enterprise agreements in providing a balanced framework that benefits both employers and employees while ensuring compliance with statutory requirements.

Asplundh Tree Expert (Australia) 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