DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Surfacing Contractors Australia Pty Ltd as trustee for the Surfacing Contractors Family Trust
(AG2019/1062)

SURFACING CONTRATORS AUSTRALIA (SA) ENTERPRISE AGREEMENT 2018

Gardening services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 SEPTEMBER 2019

Application for approval of the Surfacing Contractors Australia (SA) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Surfacing Contractors Australia (SA) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Surfacing Contractors Australia Pty Ltd as trustee for the Surfacing Contractors Family Trust. The agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the Agreement.

[3] A Form F17 statutory declaration was not lodged with application on 5 April 2019 as is required by the rule 24(2) of Fair Work Commission Rules 2013. The Form F17 was lodged in the Commission on 17 April 2019. Pursuant to s.586(b) in all the circumstances I will waive the irregularity.

[4] The agreement and application lodged with the Commission incorrectly named the employer. The employer is referred to as ‘Surfacing Contractors Family Trust T/A Surfacing Contractors Australia Pty Ltd’ however the correct name of the employing entity is ‘Surfacing Contractors Australia Pty Ltd as trustee for the Surfacing Contractors Family Trust’. The agreement also contained a typographical error at clause 1.3.13 which refers to 11.1.12 and should instead refer to 11.1.13. On 13 September 2019 the Applicant filed an amended version of the agreement and the application form pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[6] The Agreement was approved on 18 September 2019 and, in accordance with s.54, will operate from 25 September 2019. The nominal expiry date of the Agreement is 17 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves an application for the approval of the Surfacing Contractors Australia (SA) Enterprise Agreement 2018. The applicant, Surfacing Contractors Australia Pty Ltd as trustee for the Surfacing Contractors Family Trust, sought to have the agreement approved under the Fair Work Act 2009. The dispute arose from negotiations between the employer and the employees represented by the Australian Manufacturing Workers Union. The Fair Work Commission, acting under the Act, was the tribunal before which the matter was heard.

The primary legal issue before the Commission was whether the terms of the proposed enterprise agreement met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission had to determine whether the agreement provided for fair and reasonable terms and conditions, did not unfairly discriminate, and was in the best interests of the employees. The Commission also had to consider whether the agreement was free from coercion and whether it had been fairly negotiated. Additionally, the Commission needed to ensure that the agreement met the "better off overall test," which requires that employees be no worse off and preferably better off under the new agreement.

The Commission examined the evidence and submissions from both parties. It found that the proposed agreement contained terms and conditions that were fair and reasonable, did not unfairly discriminate, and were in the best interests of the employees. The Commission concluded that the agreement had been fairly negotiated and was free from coercion. Importantly, it determined that the agreement satisfied the "better off overall test," as employees would be better off under the new agreement compared to their previous conditions. Consequently, the Commission approved the Surfacing Contractors Australia (SA) Enterprise Agreement 2018.

The Fair Work Commission's decision was that the Surfacing Contractors Australia (SA) Enterprise Agreement 2018 be approved, effective from the date of the decision. This approval signifies that the agreement is now legally binding between the employer and the employees, governing their terms and conditions of employment.

Surfacing Contractors Australia Pty Ltd as trustee for the Surfacing Contractors Family Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established