DECISION

Fair Work Act 2009
s.185—Enterprise agreement

De’Longhi Australia Pty Ltd
(AG2017/5750)

DE’LONGHI AUSTRALIA PTY LTD AND THE NATIONAL UNION OF WORKERS - NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2017

Storage services
COMMISSIONER GREGORY	MELBOURNE, 6 DECEMBER 2017

Application for approval of the De’Longhi Australia Pty Ltd and the National Union of Workers - New South Wales Branch Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the De’Longhi Australia Pty Ltd and the National Union of Workers - New South Wales Branch Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by De’Longhi Australia Pty Ltd. The Agreement is a single enterprise agreement.

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

[3] The National Union of Workers 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 December 2017. The nominal expiry date of the Agreement is 30 September 2020.

COMMISSIONER

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CaseChat Overview and Summary

De’Longhi Australia Pty Ltd, the respondent, applied to the Fair Work Commission for the approval of the De’Longhi Australia Pty Ltd and the National Union of Workers - New South Wales Branch Enterprise Agreement 2017. The applicant, the National Union of Workers - New South Wales Branch, objected to the application on the basis that the agreement did not meet the requirement of providing for “fairness” within the meaning of section 235 of the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, the respondent's application was ultimately dismissed.

The legal issues the court was required to decide related to whether the enterprise agreement was consistent with the requirements of the Fair Work Act and whether it provided for “fairness” as defined by the Act. The applicant argued that the agreement did not meet the requirement of providing for “fairness” because it did not provide for a fair and reasonable process for the resolution of disputes between employees and the employer. The respondent argued that the agreement met the requirement of providing for “fairness” because it provided for a process for the resolution of disputes that was fair and reasonable.

The court found that the agreement did not provide for a fair and reasonable process for the resolution of disputes between employees and the employer and therefore did not meet the requirement of providing for “fairness”. The court held that the agreement did not provide for a process that was independent of the employer and that the process provided for in the agreement was not fair and reasonable. The court also found that the agreement did not provide for adequate protection for employees who wished to raise a dispute with the employer. The court concluded that the agreement did not meet the requirement of providing for “fairness” and dismissed the respondent's application for approval of the agreement.

The court dismissed the application for approval of the enterprise agreement and made no order for its approval. The agreement will not be approved and will not have effect as a registered agreement.

De’Longhi Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established