Envirolink Group Pty Ltd T/A Envirolink Earthworks Pty Ltd

[2023] FWCA 617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Envirolink Group Pty Ltd T/A Envirolink Earthworks Pty Ltd

(AG2023/377)

Envirolink Group Pty Ltd & The Australian Workers' Union Agreement 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 24 FEBRUARY 2023

Application for approval of the Envirolink Group Pty Ltd & The Australian Workers' Union Agreement 2023

Envirolink Group Pty Ltd has applied for approval of an enterprise agreement known as the Envirolink Group Pty Ltd & The Australian Workers’ Union Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The year in the agreement title in the Notice of Representational Rights (NERR) distributed to employees is different to clause 1 of the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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 Australian 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 22 – Abandonment of Employment; and
· Clause 47.1 – Standard Ordinary Hours.

However, noting clause 7.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 March 2023. The nominal expiry date of the Agreement is 2 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Envirolink Group Pty Ltd trading as Envirolink Earthworks Pty Ltd, sought approval of an enterprise agreement from the Fair Work Commission. The Australian Workers' Union acted as the relevant union in this matter. The primary dispute centred around the terms and conditions outlined in the proposed enterprise agreement and whether it complied with the relevant industrial relations legislation.

The court was tasked with determining whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, including whether it was a genuine enterprise agreement, whether it had been fairly negotiated, and if it contained the necessary provisions as per the Act. A significant aspect of the decision was to ensure that the agreement did not adversely affect employees' rights and entitlements.

The Fair Work Commission considered the evidence presented and concluded that the agreement was genuine, had been fairly negotiated, and contained all necessary provisions as required by law. The Commission found that the agreement did not unfavorably affect employees' rights and entitlements and was in compliance with the Fair Work Act. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Envirolink Group Pty Ltd & The Australian Workers' Union Agreement 2023, subject to its registration with the Registrar of the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established