Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 94

[2021] FWCA 94

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3838)

F L G EMPLOYEES PTY LTD T/AS FRESH LANDSCAPES GROUP AND CFMEU UNION COLLECTIVE AGREEMENT 2020–2022

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 11 JANUARY 2021

Application for approval of the F L G Employees Pty Ltd T/As Fresh Landscapes Group and CFMEU Union Collective Agreement 2020-2022.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) has made an application for approval of an enterprise agreement known as the F L G Employees Pty Ltd T/As Fresh Landscapes Group And CFMEU Union Collective Agreement 2020–2022 (Agreement). The Employer is F L G Employees Pty Ltd T/As Fresh Landscapes Group. The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a greenfields agreement.

[2] I observe that clause 38.2 of the Agreement relating to Family and Domestic Violence Leave may be inconsistent with the National Employment Standards (NES). I note that the Employer has given an Undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. A copy of this undertaking is attached as Annexure A to this decision.

[3] On this basis, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[4] I am also satisfied that the effect of accepting this Undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the undertaking will be attached to the Agreement and forms part of the Agreement.

[5] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[6] In accordance with s 187(5)(a) of the Act, and based on the statutory declaration provided by the organisation, I am satisfied that the CFMMEU, the employee organisation to be covered by the Agreement, 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.

[7] Further, I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the CFMMEU and that the Agreement covers this organisation.

[8] Clause 3 of the Agreement – date of operation – does not state a date that the Agreement is to operate from. Section 54 of the Act states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[9] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 18 January 2021. The nominal expiry date of the Agreement is, in accordance with the terms of the Agreement, 31 December 2022.

DEPUTY PRESIDENT

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Annexure A