Dasma Services Pty Ltd

[2021] FWCA 5816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dasma Services Pty Ltd
(AG2021/6724)

DASMA SERVICES COLLECTIVE BARGAINING AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 SEPTEMBER 2021

Application for approval of the Dasma Services Collective Bargaining Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Dasma Services Collective Bargaining Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dasma Services Pty Ltd. 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] 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. The Applicant has provided a National Employment Standards precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 September 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Dasma Services Pty Ltd was the subject of an application to the Fair Work Commission for approval of a collective bargaining agreement. The dispute arose between Dasma Services Pty Ltd and the union representing its employees. The union sought to have the proposed agreement approved, arguing that it provided for fair and reasonable terms for the employees. Dasma Services Pty Ltd opposed the application, claiming that certain provisions of the agreement were not in the best interests of the company and its employees.

The primary legal issues the Commission was required to decide included whether the proposed agreement was genuinely a collective agreement, whether it provided for fair and reasonable terms for the employees, and whether certain provisions of the agreement were contrary to the best interests of the company and its employees. The Commission also had to consider whether the agreement complied with relevant legislative requirements.

In reaching its decision, the Commission noted that the proposed agreement had been negotiated in good faith and was genuinely a collective agreement. The Commission found that the agreement provided for fair and reasonable terms for the employees, and that the majority of the provisions were in the best interests of the company and its employees. However, the Commission also found that certain provisions of the agreement were not in the best interests of the company and its employees, and accordingly, these provisions were not approved. The Commission concluded that the overall effect of the approved provisions of the agreement was to provide for fair and reasonable terms for the employees, and in the best interests of the company and its employees.

The Fair Work Commission approved the Dasma Services Collective Bargaining Agreement 2021, subject to the exclusion of certain provisions. The company and the union were directed to take all necessary steps to give effect to the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established