ETS Infrastructure Management Pty Ltd T/A ETS Vegetation Management

[2022] FWCA 2839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ETS Infrastructure Management Pty Ltd T/A ETS Vegetation Management

(AG2022/3319)

ETS Vegetation Management - NSW Enterprise Agreement – 2022-2025

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 19 AUGUST 2022

Application for approval of the ETS Vegetation Management - NSW Enterprise Agreement – 2022-2025

An application has been made for approval of an enterprise agreement known as the ETS Vegetation Management - NSW Enterprise Agreement – 2022-2025 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 26 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves ETS Infrastructure Management Pty Ltd, trading as ETS Vegetation Management, and the Fair Work Commission. The matter before the Commission was an application for the approval of the ETS Vegetation Management – NSW Enterprise Agreement – 2022-2025. This agreement was submitted for consideration under section 232 of the Fair Work Act 2009, aiming to be recognised as a registered agreement for the specified period. The applicants, ETS Infrastructure Management, sought to have the agreement approved as a modern award applicable to their employees within the NSW vegetation management sector.

The primary legal issue the Commission had to address was whether the agreement met the statutory criteria for approval. Specifically, the Commission had to determine if the agreement was a "better off overall test" (BOOT) compliant agreement, which requires that no employee be worse off and at least one employee be better off overall compared to the applicable award or safety net. Additionally, the Commission examined whether the agreement provided for appropriate mechanisms for dispute resolution, included the necessary provisions regarding minimum entitlements, and was otherwise consistent with the provisions of the Fair Work Act.

In its decision, the Commission found that the agreement satisfied the requirements for approval. The Commission determined that the agreement was BOOT compliant, as it did not disadvantage any employees and provided at least one employee with improved conditions. The Commission also found that the agreement contained adequate dispute resolution mechanisms and did not contravene any minimum entitlements stipulated by the Fair Work Act. Consequently, the Commission approved the agreement, making it a registered agreement effective from the date of the decision until the end of the specified period.

The Fair Work Commission approved the ETS Vegetation Management – NSW Enterprise Agreement – 2022-2025 as a registered agreement, effective from the date of the decision and continuing until the end of the specified period. This decision ensures that the terms of the agreement will apply to the employees of ETS Infrastructure Management within the NSW vegetation management sector for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established