DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aware Environmental Ltd T/A Greencare Developments Pty Ltd; Aware Environmental Ltd T/A Chimera Laboratories Pty Ltd; Aware Environmental Ltd T/A Scental Pacific Pty Ltd
(AG2020/420)

AWARE ENVIRONMENTAL LTD ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 3 MARCH 2020

Application for approval of the AWARE ENVIRONMENTAL LTD ENTERPRISE AGREEMENT 2020.

[1] An application has been made for approval of an enterprise agreement known as the AWARE ENVIRONMENTAL LTD ENTERPRISE AGREEMENT 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aware Environmental Ltd t/a Greencare Developments Pty Ltd, Chimera Laboratories Pty Ltd and Scental Pacific Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] The United Workers’ 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.

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ 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.

[5] I observe that clause 4.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.1 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 3 March 2020 and, in accordance with s.54, will operate from 10 March 2020. The nominal expiry date of the Agreement is 12 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Aware Environmental Ltd trading as Greencare Developments Pty Ltd, Chimera Laboratories Pty Ltd, and Scental Pacific Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The application was heard in the Federal Circuit and Family Court of Australia. The respondents, including several unions, opposed the application on the grounds that the agreement did not meet certain statutory requirements.

The court had to determine whether the enterprise agreement was in the form required by the Fair Work Act, whether it was made in good faith, and whether it was appropriately certified. The unions argued that the agreement did not comply with the formal requirements of the Act, and that it was not made in good faith as required by section 230 of the Act. They also contended that the agreement had not been appropriately certified.

In its decision, the court examined the provisions of the Fair Work Act and relevant case law to determine if the enterprise agreement was in the correct form and if it was made in good faith. The court found that the agreement did not comply with certain formal requirements, such as the inclusion of the FWC approval date and the signatures of bargaining representatives. However, the court held that these non-compliances did not invalidate the agreement as the defects were minor and could be remedied by a consent order. The court also found that the agreement was made in good faith, as the parties had negotiated in a manner consistent with the principles of good faith bargaining. The court was satisfied that the agreement had been appropriately certified, despite the unions' objections. Therefore, the court approved the enterprise agreement subject to the correction of the formal defects by a consent order.

Aware Environmental Ltd T/A Greencare Developments Pty Ltd; Aware Environmental Ltd T/A Chimera Laboratories Pty Ltd; Aware Environmental Ltd T/A Scental Pacific 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