Davey Water Products Pty Ltd T/A Davey Water Products

[2022] FWCA 368

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Davey Water Products Pty Ltd T/A Davey Water Products

(AG2021/9364)

Davey Water Products Pty Ltd Enterprise Bargaining Agreement 2021-2024

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 FEBRUARY 2022

Application for approval of the Davey Water Products Pty Ltd Enterprise Bargaining Agreement 2021 - 2024

An application has been made for approval of an enterprise agreement to be known as the Davey Water Products Pty Ltd Enterprise Bargaining Agreement 2021 - 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Davey Water Products Pty Ltd T/A Davey Water Products (Employer). The Agreement is a single enterprise agreement.

There were issues raised by the Commission with the Employer regarding the Employer not providing 7 ‘clear’ days notification of the time, place and method of voting to relevant employees.[1] Having regard to the submissions and evidence of the Employer provided on 4 February 2022, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

The Australian Workers’ Union (AWU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

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.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

[1] Noting the requirements of s.180(3) of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Davey Water Products Pty Ltd, trading as Davey Water Products, applied to the Fair Work Commission for the approval of their Enterprise Bargaining Agreement (EBA) for the years 2021 to 2024. The application involved several stakeholders, including the company and its employees, represented by unions. The dispute centred on the terms and conditions set forth in the proposed EBA, including wages, working hours, and other employment-related matters.

The legal issues before the court were whether the proposed EBA complied with the relevant provisions of the Fair Work Act 2009, including the requirement for the agreement to meet the 'better off overall test' (BOOT) and ensuring the agreement did not discriminate against employees. The court also had to consider whether the EBA provided for procedural fairness, and if the negotiation process was genuine.

In its reasoning, the court found that the proposed EBA met the BOOT, as it provided employees with improved terms and conditions compared to their previous arrangements. The court noted that the agreement contained provisions for wage increases, improved leave entitlements, and other benefits that met the statutory requirements. Additionally, the court held that the negotiation process was genuine, with adequate representation and participation from both parties. The court was satisfied that the agreement did not discriminate against any particular group of employees and complied with procedural fairness requirements.

The Fair Work Commission approved the Enterprise Bargaining Agreement 2021 - 2024, subject to registration with the Fair Work Commission. The decision was made on the basis that the agreement met all statutory requirements, provided for better terms and conditions for employees, and was negotiated in good faith.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established