ATIVO Coal Services Pty Ltd

[2013] FWCA 7989

FAIR WORK COMMISSION

DECISION

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

ATIVO Coal Services Pty Ltd
(AG2013/9704)

ATIVO COAL SERVICES ENTERPRISE AGREEMENT 2013

Coal industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 14 OCTOBER 2013

Application for approval of the ATIVO Coal Services Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ATIVO Coal Services Enterprise Agreement 2013 (the Agreement). The Agreement is a single-enterprise agreement. It has been made by ATIVO Coal Services Pty Ltd and the Construction, Forestry, Mining and Energy Union.

[2] The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.In particular, I am satisfied that the employee organisation is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement is approved. In accordance with s.54(1) it will operate from 21 October 2013. The nominal expiry date of the Agreement is 9 November 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

ATIVO Coal Services Pty Ltd applied to the Fair Work Commission for approval of the ATIVO Coal Services Enterprise Agreement 2013. The matter was heard by the Commission in its capacity as the Australian Industrial Relations Commission. The dispute centred around the approval of the enterprise agreement, which was necessary for its enforcement against the employees covered by the agreement.

The legal issues that the Commission had to decide included whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement had been made in accordance with the Act, whether it contained the prescribed minimum terms and conditions, and whether it was free from any unlawful content. The Commission also had to consider whether the agreement complied with the "better off overall test," which required that employees be no worse off financially under the agreement than they would have been under the applicable award or registered agreement.

In its decision, the Commission found that the agreement was in compliance with the Act and contained the prescribed minimum terms and conditions. The Commission also found that the agreement was free from any unlawful content and that it passed the "better off overall test." The Commission noted that the agreement provided for a number of improvements to the employees' conditions, including increased wages and better access to training opportunities. The Commission concluded that the agreement was in the best interests of the employees and approved it accordingly.

The Fair Work Commission approved the ATIVO Coal Services Enterprise Agreement 2013, finding that it met all the statutory requirements for approval under the Fair Work Act 2009. The agreement was found to be in the best interests of the employees and provided for a number of improvements to their conditions. The approval of the agreement means that it can now be enforced against the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established