Australian Sustainable Hardwoods Pty Ltd

[2023] FWCA 2566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Sustainable Hardwoods Pty Ltd

(AG2023/2657)

AUSTRALIAN SUSTAINABLE HARDWOODS PTY LTD COLLECTIVE AGREEMENT 2023

Timber industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 15 AUGUST 2023

Application for approval of the Australian Sustainable Hardwoods Pty Ltd Collective Agreement 2023

An application has been made for approval of an enterprise agreement known as the Australian Sustainable Hardwoods Pty Ltd Collective Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Sustainable Hardwoods Pty Ltd. The Agreement is a single enterprise agreement.

I was concerned that clause 21.10 of the Agreement which states that notification of non-work attendance is required as soon as possible and at least within 4 hours of commencement of shift may apply in a manner inconsistent with the National Employment Standards (NES).

In response the employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. A copy of the undertaking was provided to all bargaining representatives. No objection was raised. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Construction, Forestry, Maritime, Mining & Energy Union, 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.

The Agreement was approved on 15 August 2023 and, in accordance with s.54, will operate from 22 August 2023. The nominal expiry date of the Agreement at clause 4 is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Australian Sustainable Hardwoods Pty Ltd, applied to the Fair Work Commission for approval of a collective agreement. The agreement, which was proposed to govern the employment terms and conditions of employees within the company, was the subject of dispute between the applicant and its employees. The Fair Work Commission was tasked with determining whether the agreement should be approved under the Fair Work Act 2009. The central legal issue before the Commission was whether the collective agreement met the criteria for approval as stipulated by the Act. Specifically, the Commission had to assess whether the agreement contained provisions that were consistent with the Act's objectives of facilitating cooperative and productive workplace relations.

In addressing this issue, the Commission considered various aspects of the agreement, including its alignment with the principles of enterprise flexibility and its compliance with the Act's requirements for fair and reasonable terms and conditions. The Commission examined whether the agreement adequately balanced the interests of both the employer and employees, and whether it provided for appropriate mechanisms for resolving disputes. Additionally, the Commission evaluated whether the agreement adhered to the statutory requirements for employee representation and consultation. The Commission determined that the agreement satisfied the necessary criteria for approval. It was found to contain provisions that were consistent with the objectives of the Act, balanced the interests of both parties, and provided for fair and reasonable terms and conditions of employment.

The Commission approved the collective agreement, stating that it met the statutory requirements and was in the best interests of the employees and the employer. The approval was based on the comprehensive review of the agreement and its alignment with the principles and objectives of the Fair Work Act 2009. The final orders included the approval of the Australian Sustainable Hardwoods Pty Ltd Collective Agreement 2023, which was to be registered and enforced under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established