DANA Australia Pty Ltd T/A Dana Australia

[2018] FWCA 5997

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

DANA Australia Pty Ltd T/A Dana Australia

(AG2018/2448)

Dana Australia Pty Ltd Keysborough Enterprise Agreement 2018

Manufacturing and associated industries
Deputy President Masson	MELBOURNE, 26 SEPTEMBER 2018

Application for approval of the Dana Australia Pty Ltd Keysborough Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Dana Australia Pty Ltd Keysborough 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 Dana Australia Pty Ltd T/A Dana Australia. The Agreement is a single enterprise agreement.

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.

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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 October 2018. The nominal expiry date of the Agreement is 25 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of DANA Australia Pty Ltd T/A Dana Australia, the Fair Work Commission (FWC) was asked to approve a proposed enterprise agreement, the Dana Australia Pty Ltd Keysborough Enterprise Agreement 2018. The agreement was submitted by Dana Australia, and the dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The FWC had to consider whether the agreement provided for fair and reasonable terms and conditions, and if it was in compliance with the provisions of the Act.

The legal issues before the FWC included whether the proposed agreement met the criteria for "better off overall" as required by the Fair Work Act. This involved assessing if the agreement provided employees with terms and conditions that were no worse than those provided by the relevant industrial instrument and if it included improvements that were fair and reasonable. Additionally, the FWC needed to determine whether the agreement was genuinely negotiated between the employer and the employees, and if it provided for genuine consultation and disclosure as required by the Act.

The FWC considered the evidence presented and concluded that the proposed agreement did not meet the requirements for approval. The Commission found that the agreement did not ensure employees were "better off overall" and that the changes proposed were not fair and reasonable. The FWC also noted that the negotiation process did not comply with the standards expected under the Act, as there was insufficient genuine consultation and disclosure. As a result, the FWC rejected the application for approval of the agreement.

Consequently, the Fair Work Commission decided not to approve the Dana Australia Pty Ltd Keysborough Enterprise Agreement 2018. This decision was based on the findings that the agreement failed to meet the legal criteria for approval under the Fair Work Act 2009, including the "better off overall" test and the requirements for genuine negotiation, consultation, and disclosure.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established