DESA Australia Pty Ltd

[2017] FWCA 6464

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

DESA Australia Pty Ltd

(AG2017/5521)

Desa Australia Pty Limited and ETU Enterprise Agreement 2017 - 2021

Electrical contracting industry
Commissioner Cirkovic	MELBOURNE, 5 DECEMBER 2017

Application for approval of the Desa Australia Pty Limited and ETU Enterprise Agreement 2017 - 2021.

An application has been made for approval of an enterprise agreement known as the Desa Australia Pty Limited and ETU Enterprise Agreement 2017 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DESA Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Applicant 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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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 was approved on 5 December 2017 and, in accordance with s.54, will operate from 12 December 2017. The nominal expiry date of the Agreement is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

DESA Australia Pty Ltd, represented by its Director, applied for approval of the DESA Australia Pty Limited and ETU Enterprise Agreement 2017 - 2021. The application was heard by the Fair Work Commission, which had to determine whether the agreement met the requirements of the Fair Work Act 2009. The dispute involved the terms and conditions of employment, including wages, hours of work, and other provisions related to the employees covered by the agreement.

The legal issues before the Commission included whether the agreement had been fairly negotiated, whether it met the better off overall test, and whether it complied with the provisions of the Fair Work Act. The Commission also considered the fairness of the agreement's terms and whether it provided for the appropriate balance of interests between the employer and employees. Additionally, the Commission examined whether the agreement adequately addressed the needs of employees, including those with disabilities, and whether it provided for appropriate dispute resolution mechanisms.

The Commission found that the agreement had been fairly negotiated and met the better off overall test. It concluded that the agreement provided for appropriate terms and conditions of employment, including wages, hours of work, and other provisions. The Commission also found that the agreement adequately addressed the needs of employees, including those with disabilities, and provided for appropriate dispute resolution mechanisms. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications included changes to the agreement's provisions related to the calculation of overtime and the use of casual employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established