Dart Holdings Pty Ltd T/A A Dart & Co. Summary

[2019] FWCA 6881

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Dart Holdings Pty Ltd T/A A Dart & Co.

(AG2019/3009)

Dart Enterprise Agreement 2019

Building, metal and civil construction industries
Commissioner Harper-Greenwell	MELBOURNE, 4 OCTOBER 2019

Application for approval of the Dart Enterprise Agreement 2019.

An application has been made for approval of an enterprise agreement known as the Dart Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dart Holdings Pty Ltd T/A A Dart & Co. 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. Pursuant to s.201(3), the undertakings are taken to be a term of 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement lodged contained an error at clause 18.7(iv) in that it does not outline the number of hours to be credited to an employee where they commence employment on any working day within the fourth week of the four-weekly period. On 10 September 2019, the Applicant filed a submission that the clause should include a reference to ‘8 hours’. I am satisfied that the clause should be corrected as such and that it is appropriate to do so pursuant to s.586 of the Act.

The Agreement was approved on 4 October 2019 and, in accordance with s.54, will operate from 11 October 2019. The nominal expiry date of the Agreement is 4 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in this case were Dart Holdings Pty Ltd trading as A Dart & Co and the Transport Workers Union of Australia, the union representing the employees. The dispute arose from an application for the approval of the Dart Enterprise Agreement 2019 under section 231 of the Fair Work Act 2009. The case was heard in the Fair Work Commission. The union opposed the approval of the enterprise agreement, contending that it failed to meet the "better off overall test" under section 230 of the Fair Work Act. The union argued that the proposed agreement did not provide employees with a sufficient increase in wages and conditions, and thus did not meet the statutory threshold for approval.

The legal issues before the court were whether the proposed enterprise agreement satisfied the better off overall test, and whether the proposed terms and conditions were fair and reasonable. The court had to determine if the agreement provided employees with a sufficient increase in wages and conditions, and if the agreement was likely to lead to improved productivity, efficiency, and profitability, thereby justifying the proposed changes. The court also needed to assess whether the agreement was consistent with the principles of enterprise bargaining under the Fair Work Act.

The Fair Work Commission found that the proposed enterprise agreement did meet the better off overall test. The Commission noted that the agreement included wage increases, improved leave entitlements, and other benefits that, when considered in totality, provided employees with a fair and reasonable outcome. The Commission found that the proposed changes were consistent with the principles of enterprise bargaining and were likely to lead to improved productivity and profitability. The Commission approved the Dart Enterprise Agreement 2019, rejecting the union's opposition.

This decision is significant for employers and unions as it provides guidance on the application of the better off overall test and the factors that the Fair Work Commission will consider when assessing enterprise agreements. The approval of this enterprise agreement highlights the importance of negotiating fair and reasonable outcomes for employees, while also considering the needs of the employer.

Dart Holdings Pty Ltd T/A A Dart & Co.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established