DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Harvey’s Contract Services Pty Ltd
(AG2020/924)

HARVEY'S TOWING SINGLE ENTERPRISE AGREEMENT 2020-2024

DEPUTY PRESIDENT LAKE

BRISBANE, 26 JUNE 2020

Application for approval of the Harvey's Towing Single Enterprise Agreement 2020-2024 - approval under s 190 – undertakings – single interest employer.

[1] An application has been made for approval of an enterprise agreement to be known as the Harvey's Towing Single Enterprise Agreement 2020-2024 (Agreement). The application was made under s 185 of the Fair Work Act 2009 (Act). It has been made by Harvey’s Contract Services Pty Ltd (Applicant).

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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.

[3] The Agreement seeks to cover three employer, they are:

• Harvey's Contract Services Pty Ltd (ACN 168 159 779);

• Harvey's Mechanical & Welding Services Pty Ltd (ACN 115 035 722); and

• Walker Communications Pty Ltd (ACN 169 232 697).

The Applicant submits that these employers are single interest employers for the purpose of s 172(2) of the Act. The Applicant submitted that the employers all have the same Director and engage in integrated tasks making up the collective tasks of the business. These employers constitute a ‘closely connected operation… that contribute to the overall purpose that unites them.’ 1

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

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

• Clause 18 – Abandonment of Employment.

However, noting Clause 6 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.

[6] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 3 July 2020. The nominal expiry date of the Agreement is 26 June 2024.

DEPUTY PRESIDENT

Annexure A

1 Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (1982) 148 CLR 121, 133 (Mason J).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved Harvey’s Contract Services Pty Ltd, an employer, and the Fair Work Commission, acting as the arbiter in the approval of an enterprise agreement. The nature of the dispute centred around the application for the approval of the Harvey's Towing Single Enterprise Agreement 2020-2024, specifically under section 190 of the Fair Work Act. The court was required to determine whether the employer, considered a single interest employer, had made the necessary undertakings to ensure the agreement met the standards set forth by the Act.

The primary legal issues the court had to address were whether the employer, Harvey’s Contract Services Pty Ltd, had provided sufficient undertakings to meet the requirements of section 190 of the Fair Work Act and whether the agreement in question was in the best interests of the employees. The court had to scrutinise the terms of the proposed agreement, the nature of the employer's undertakings, and whether these undertakings were adequate to protect the employees' interests.

In its reasoning, the court examined the terms of the proposed enterprise agreement and the employer's undertakings. The court found that the employer had provided adequate undertakings, which aligned with the requirements of the Fair Work Act. It was determined that the agreement was fair and reasonable, taking into account the interests of the employees. Consequently, the court approved the Harvey's Towing Single Enterprise Agreement 2020-2024, finding that it met the standards under section 190 of the Fair Work Act.

As a result of the court's decision, the Fair Work Commission approved the agreement, and it was registered accordingly. This decision ensured that the terms of the agreement would be binding between the employer and the employees, providing a framework for their industrial relations moving forward.

Harvey’s Contract Services Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established