Dell Australia Pty Ltd; Dell Software Pty Ltd Summary

[2014] FWCA 1518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Dell Australia Pty Ltd; Dell Software Pty Ltd
(AG2013/12849)

DELL AUSTRALIA PTY LTD AND DELL SOFTWARE PTY LTD ENTERPRISE AGREEMENT 2013

Business equipment industry
COMMISSIONER BULL	SYDNEY, 4 MARCH 2014

Application for approval of the Dell Australia Pty Ltd and Dell Software Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Dell Australia Pty Ltd and Dell Software Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 17 February 2014, the Commission sent correspondence to the Applicant via its legal representative concerning the rates of pay found at Annexure 1 - Minimum base salaries, in the Agreement. In the Applicant’s Form F17 - Employer’s declaration in support of application for approval of enterprise agreement, it stated that the relevant modern awards with respect to the application of the better off overall test were the Business Equipment Industry Award 2010 (BEI Award) and the Professional Employees Award 2010 (the Professional Award).

[3] The Commission’s concerns related to those classifications whose employment appeared to be underpinned by the Professional Award. In particular, a number of the minimum base salaries concerning these employees appeared to be less than the minimum rates of pay contained under the Professional Award.

[4] Correspondence was received from the Applicant on 3 March 2014. The Applicant submits that the most appropriate modern award applying to the employees covered by the Agreement in the classifications set out in Annexure 1 of the Agreement is the BEI Award.

[5] The Applicant provided calculations to demonstrate that the employees are better off overall when compared to the BEI Award.

[6] The Applicant submits that the Professional Award could only apply to a small number of employees who would otherwise be covered by the BEI Award but for the existence of the individual’s tertiary qualifications.

[7] The Applicant has provided an undertaking, that where an employee has the requisite qualifications and experience to fall within the coverage provisions of the Professional Award the following minimum full-time base salary will be paid, over the life of the Agreement:

● Year 1: $51,500
● Year 2: $52,500
● Year 3: $54,000
● Year 4: $55,000

[8] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[9] Upon review of the Applicant’s correspondence and the undertaking provided, I am satisfied that employees are better off overall under the Agreement.

[10] The Agreement covers employees in the classifications specified at sub clause 5.2 of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[12] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 11 March 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

In this case, Dell Australia Pty Ltd and Dell Software Pty Ltd sought approval of their Enterprise Agreement 2013 from the Fair Work Commission. The application for approval was made under section 233 of the Fair Work Act 2009. The dispute centred on the terms of the proposed agreement, which sought to alter existing employment conditions for the employees of the two companies.

The primary legal issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act and whether it provided for the fair and equitable treatment of the employees. This included assessing whether the agreement met the 'better off overall test', ensuring that employees were no worse off than they would be under their existing conditions of employment. Additionally, the Commission needed to consider whether the agreement adhered to the relevant award provisions and whether it included appropriate mechanisms for dispute resolution.

The Commission found that the proposed agreement did comply with the statutory requirements and met the better off overall test. It determined that the agreement provided for fair and equitable treatment of the employees and included appropriate dispute resolution mechanisms. Consequently, the Commission approved the Enterprise Agreement 2013, finding it to be in accordance with the provisions of the Fair Work Act.

The final orders of the Commission included the approval of the Dell Australia Pty Ltd and Dell Software Pty Ltd Enterprise Agreement 2013, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman and would govern the employment conditions of the relevant employees for the specified period.

Dell Australia Pty Ltd; Dell Software Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established