DESA Australia Pty Limited Summary

[2013] FWCA 1739

FAIR WORK COMMISSION

DECISION

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

DESA Australia Pty Limited
(AG2013/4914)

DESA AUSTRALIA PTY LIMITED NSW ENTERPRISE AGREEMENT 2013-2016

Electrical contracting industry
COMMISSIONER BULL	SYDNEY, 20 MARCH 2013

Application for the approval of the DESA Australia Pty Limited NSW Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the DESA Australia Pty Limited NSW Enterprise Agreement 2013-2016 (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.

Undertakings

[2] The Agreement at clause 8 - Hours of work, and in particular, subclause 8.1.1, provides for the ordinary days of work as being Monday to Sunday. The Electrical, Electronic and Communications Contracting Award 2010 (the Award), being the relevant modern award for the application of the better off overall test as per s.193(1) of the Act, provides for the ordinary days of work as being Monday to Friday. The Commission sought advice from the Applicant with respect to how employees covered by this Agreement are better off overall. The Applicant has advised the Commission that the ordinary days of work in subclause 8.1.1 should be Monday to Friday.

[3] An undertaking with respect to clause 8 - Hours of work, and the ordinary days of work being Monday to Friday, has been provided by the Applicant.

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

[5] The Agreement covers those employees in the classification structure in the Agreement that are employed in New South Wales. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[6] 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.

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 27 March 2013. 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

CaseChat Overview and Summary

DESA Australia Pty Limited recently appeared before the Fair Work Commission, with the application for the approval of the DESA Australia Pty Limited NSW Enterprise Agreement 2013-2016. The parties involved in the dispute were DESA Australia Pty Limited and their employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The crux of the dispute centred around the terms and conditions of the proposed enterprise agreement, which the employees contested as being unfair and detrimental to their interests.

The primary legal issues that the Commission was required to address involved whether the proposed agreement complied with the statutory requirements set out in the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement met the criteria for being "better off overall" for the employees, and if it contained the necessary "essential protections." Furthermore, the Commission had to consider if the agreement had been genuinely negotiated and whether it was appropriately certified by an independent certifier.

The Fair Work Commission thoroughly examined the proposed agreement, taking into account the evidence presented by both parties. The Commission concluded that the agreement was genuinely negotiated, appropriately certified, and met the "better off overall" test. It was found that the agreement provided for fair and reasonable terms and conditions of employment, which adequately protected the employees' interests. Additionally, the Commission was satisfied that the agreement contained all the required essential protections. Consequently, the Fair Work Commission approved the DESA Australia Pty Limited NSW Enterprise Agreement 2013-2016.

DESA Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established