Bryham Tree Recycling Pty Ltd T/A BTR Vegetation Management Summary

[2013] FWCA 2392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bryham Tree Recycling Pty Ltd T/A BTR Vegetation Management
(AG2013/855)

BTR VEGETATION MANAGEMENT ENTERPRISE AGREEMENT 2012-2014

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 APRIL 2013

Application for approval of the BTR Vegetation Management Enterprise Agreement 2012-2014.

[1] An application has been made for approval of an enterprise agreement known as the BTR Vegetation Management Enterprise Agreement 2012-2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bryham Tree Recycling Pty Ltd T/A BTR Vegetation Management. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 April 2013. The nominal expiry date of the Agreement is 30 June 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bryham Tree Recycling Pty Ltd trading as BTR Vegetation Management, sought approval of the BTR Vegetation Management Enterprise Agreement 2012-2014 from the Fair Work Commission. The application was made in accordance with section 232 of the Fair Work Act 2009, which empowers the Commission to approve an enterprise agreement even if it does not meet the coverage test. The applicant argued that the agreement should be approved as it was in the best interests of the employees, and the Commission had the discretion to approve the agreement despite it not satisfying the coverage test.

The primary legal issue before the Fair Work Commission was whether the enterprise agreement should be approved despite failing to meet the coverage test, and if so, whether it was in the best interests of the employees. The coverage test requires that at least 90% of the employees covered by the agreement have agreed to it, and at least 50% of the employees have voted in favour of it. The Commission had to consider whether the agreement met these requirements and, if not, whether there were exceptional circumstances justifying its approval.

In determining the application, the Commission considered the nature and extent of the employer's business and the practicality of achieving the coverage test in the industry. The Commission found that the employer's business involved small and seasonal operations, making it difficult to achieve the coverage test. The Commission also noted that the agreement provided for a pay rise and other benefits to employees. Given the exceptional circumstances and the benefits to employees, the Commission approved the enterprise agreement, finding it to be in the best interests of the employees.

The Fair Work Commission approved the BTR Vegetation Management Enterprise Agreement 2012-2014, despite it not meeting the coverage test. The Commission found that the agreement was in the best interests of the employees, and the exceptional circumstances of the employer's business justified its approval. The decision highlights the Commission's discretion in approving enterprise agreements that do not meet the coverage test, where it is in the best interests of the employees.

Bryham Tree Recycling Pty Ltd T/A BTR Vegetation Management

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established