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

Printed by authority of the Commonwealth Government Printer

Annexure A

The parties involved in this matter were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and F L G Employees Pty Ltd, trading as Fresh Landscapes Group (Fresh Landscapes). The dispute centred on the approval of the CFMEU Union Collective Agreement 2020-2022 between the union and Fresh Landscapes. The application was brought before the Fair Work Commission, an Australian federal statutory authority with jurisdiction over workplace relations matters. The primary concern was whether the terms of the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement contained terms that were contrary to the public interest, whether it was made in good faith, and whether it provided for the fair and efficient determination of employees' terms and conditions of employment. Additionally, the Commission had to determine whether the agreement adequately covered the bargaining period and whether it included necessary dispute resolution mechanisms.

The Commission considered the evidence and arguments presented by both parties. It assessed the terms of the agreement against the statutory requirements and found that the agreement did not contain terms that were contrary to the public interest. The Commission also determined that the agreement was made in good faith and provided for the fair and efficient determination of employees' terms and conditions of employment. The agreement was deemed to cover the bargaining period and included necessary dispute resolution mechanisms. Consequently, the Fair Work Commission approved the CFMEU Union Collective Agreement 2020-2022.

The final orders of the Commission were to approve the CFMEU Union Collective Agreement 2020-2022 between Fresh Landscapes and the CFMEU, effective from the date of the decision. This decision affirmed the agreement as a legally binding instrument governing the employment terms and conditions of the employees within the scope of the agreement.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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Legal Principle Established