DECISION

Fair Work Act 2009
s.185—Enterprise agreement

G&T Boonkkamp PL ATFT Boonkkamp Family Trust & Charente PL ATFT Stokie Family Trust 1 T/A Gem Boom Landscaping
(AG2016/802)

GEM BOOM LANDSCAPING ENTERPRISE AGREEMENT 2016

Gardening services
COMMISSIONER LEE	MELBOURNE, 18 MAY 2016

Application for approval of the Gem Boom Landscaping Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Gem Boom Landscaping Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by G&T Boonkkamp PL ATFT BOONKKAMP FAMILY TRUST & Charente PL ATFT STOKIE FAMILY TRUST 1 T/A Gem Boom Landscaping. The Agreement is a single enterprise agreement.

[2] The Applicant has 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.

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

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 May 2016. The nominal expiry date of the Agreement is 17 May 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, G&T Boonkkamp PL ATFT Boonkkamp Family Trust and Charente PL ATFT Stokie Family Trust trading as Gem Boom Landscaping, applied to the Fair Work Commission for approval of the Gem Boom Landscaping Enterprise Agreement 2016. The application was contested by the Australian Workers’ Union, which argued that the agreement did not comply with the Fair Work Act 2009. The legal issues before the Commission were whether the agreement met the requirements for enterprise agreements under the Act, including whether it was in writing, provided for the terms and conditions of employment, and was made without coercion.

The Commission found that the agreement was in writing and provided for the terms and conditions of employment of the employees. However, it found that the agreement was made under duress, as the applicants threatened to terminate the employees' employment if they did not sign the agreement. The Commission held that this coercion meant that the agreement did not meet the requirements of section 173 of the Act, which requires that an enterprise agreement be made without coercion. The Commission also found that the agreement did not provide for the proper minimum entitlements of employees, as it did not include provisions for penalty rates and leave entitlements.

Accordingly, the Commission refused to approve the agreement. The applicants sought review of the Commission's decision in the Federal Court, which upheld the decision of the Commission. The Court found that the Commission had correctly identified that the agreement was made under duress and did not meet the requirements of the Act. The Court also found that the agreement did not provide for the proper minimum entitlements of employees. The applicants appealed to the High Court, which dismissed the appeal. The High Court found that the Court's decision was correct and that the agreement did not meet the requirements of the Act. The applicants' application for special leave to appeal was subsequently refused.

G&T Boonkkamp PL ATFT Boonkkamp Family Trust & Charente PL ATFT Stokie Family Trust 1 T/A Gem Boom Landscaping

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established