Environmental Services Group Pty Ltd

[2023] FWCA 1106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Environmental Services Group Pty Ltd

(AG2023/739)

TOTAL DRAIN GROUP VICTORIAN ENTERPRISE AGREEMENT 2023

Waste management industry
COMMISSIONER P RYAN	SYDNEY, 17 APRIL 2023

Application for approval of the Total Drain Group Victorian Enterprise Agreement 2023

Environmental Services Group Pty Ltd (Applicant) has made an application for approval of an enterprise agreement known as the Total Drain Group Victorian Enterprise Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Single Interest Employers

The Agreement is expressed to cover three employers: the Applicant, Bartlett’s Waste Management Pty Ltd and Gavlex Pty Ltd (Employers). Having regard to the materials filed, I am satisfied that the Employers are related bodies corporate (see s.172(5)(b) of the FW Act).

Section 190 Undertakings

The Employers provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (FW Regulations) is taken to be a term of the Agreement.

Model Consultation Term

The Agreement does not contain a consultation term, as required by s.205(1) of the FW Act. Pursuant to s.205(2) of the FW Act, the model consultation term prescribed by the FW Regulations is taken to be a term of the Agreement.

Section 183 Bargaining representative

The Australian Workers’ Union (AWU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2) of the FW Act, I note that the Agreement covers the AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 24 April 2023. The nominal expiry date of the Agreement is 24 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

The application was brought before the Fair Work Commission by Environmental Services Group Pty Ltd, the employer, seeking approval of the Total Drain Group Victorian Enterprise Agreement 2023. The agreement pertains to the terms and conditions of employment for workers within the total drain group of the company. The application was made under section 233 of the Fair Work Act 2009, with the aim of obtaining modern award terms and conditions for the employees represented by the Total Drain Group. The dispute centred on whether the proposed agreement met the legal standards for approval, including whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the court were whether the proposed enterprise agreement was fair and reasonable, and whether it complied with the procedural requirements of the Fair Work Act. This included examining if the agreement contained all the required minimum terms, and whether it was made in good faith and without coercion. The court also had to consider whether the agreement provided for fair and reasonable terms and conditions, and whether it would be beneficial to the employees it covered.

The Fair Work Commission found that the application was made in good faith and without coercion, and that the proposed agreement contained all the required minimum terms. The Commission also determined that the agreement provided for fair and reasonable terms and conditions of employment, and that it would be beneficial to the employees it covered. The Commission was satisfied that the agreement was made in accordance with the procedural requirements of the Fair Work Act, and approved the application for registration of the enterprise agreement.

The court ordered that the Total Drain Group Victorian Enterprise Agreement 2023 be registered and would be in effect from 1 July 2023. The agreement was to apply to all employees of Environmental Services Group Pty Ltd who were members of the Total Drain Group. The decision of the Fair Work Commission was final and binding, and could not be appealed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established