Derwent Industries Pty Ltd T/A Derwent Industries

[2023] FWCA 2550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Derwent Industries Pty Ltd T/A Derwent Industries

(AG2023/2589)

DERWENT INDUSTRIES PTY LTD HOBART DIVISION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 15 AUGUST 2023

Application for approval of the Derwent Industries Pty Ltd Hobart Division Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Derwent Industries Pty Ltd Hobart Division Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Derwent Industries Pty Ltd T/A Derwent Industries. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 3 July 2023 and the Agreement was made on 25 July 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A 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 sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Workers' Union 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 August 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Derwent Industries Pty Ltd trading as Derwent Industries, applied to the Fair Work Commission for approval of the Derwent Industries Pty Ltd Hobart Division Enterprise Agreement 2023. The dispute arose from a negotiation process where the company sought to implement certain changes to the terms and conditions of employment for its employees in the Hobart Division. The Commission was tasked with determining whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 and was in the best interests of the employees.

The legal issues before the Commission involved assessing whether the agreement contained all the required provisions, was free from prohibited content, and was made in good faith. The Commission also needed to consider whether the agreement provided for the proper protection of employees' rights and interests, and whether it was likely to lead to improved workplace relations. Furthermore, the Commission had to ensure that the agreement was not likely to have an adverse effect on the financial viability of the company.

After considering the evidence and submissions from both parties, the Commission found that the Derwent Industries Pty Ltd Hobart Division Enterprise Agreement 2023 met the statutory requirements under the Fair Work Act 2009. The Commission was satisfied that the agreement contained all the necessary provisions, was free from prohibited content, and was made in good faith. The Commission also found that the agreement provided for the proper protection of employees' rights and interests, and was likely to lead to improved workplace relations. Additionally, the Commission determined that the agreement was not likely to have an adverse effect on the financial viability of the company. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Derwent Industries Pty Ltd Hobart Division Enterprise Agreement 2023, finding it to be in compliance with the Fair Work Act 2009 and in the best interests of the employees. The agreement was to commence on 1 July 2023 and would remain in force until 30 June 2026, subject to the terms and conditions set out in the agreement. The Commission's decision was based on the evidence and submissions presented by both parties, and it was determined that the agreement met all the necessary statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established