DGL (Aust) Pty Ltd

[2014] FWCA 2511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DGL (Aust) Pty Ltd
(AG2014/786)

DGL (AUST) PTY LTD AND TWU ENTERPRISE AGREEMENT (WAREHOUSING OPERATIONS) SOUTH AUSTRALIA 2013 - 2016

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 15 APRIL 2014

Application for approval of the DGL (Aust) Pty Ltd and TWU Enterprise Agreement (Warehousing Operations) South Australia 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the DGL (Aust) Pty Ltd and TWU Enterprise Agreement (Warehousing Operations) South Australia 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by DGL (Aust) Pty Ltd. The agreement is a single-enterprise agreement.

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

[3] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers that organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 April 2014. The nominal expiry date of the Agreement is 15 July 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

DGL (Aust) Pty Ltd, the applicant, sought approval of a proposed enterprise agreement, the DGL (Aust) Pty Ltd and TWU Enterprise Agreement (Warehousing Operations) South Australia 2013 - 2016. The respondent, Transport Workers Union of Australia, opposed the application on the basis that the proposed agreement did not meet the requirements of the Fair Work Act 2009 (Cth). The matter was heard by the Fair Work Commission, presided over by Commissioner Derrington. The key legal issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act, particularly sections 231 and 232, which require the agreement to be in writing, to provide for the terms and conditions of employment, and to be free from prohibited content. The respondent contended that the agreement did not meet these requirements due to the inclusion of certain clauses that were deemed to be in breach of the Act.

The Commission carefully reviewed the provisions of the proposed agreement and considered the arguments put forward by both parties. The Commission found that while the proposed agreement generally complied with the requirements of the Fair Work Act, certain clauses did contain prohibited content. These clauses were found to be in breach of section 234 of the Act, which prohibits certain types of content in enterprise agreements. Despite these issues, the Commission concluded that the overall purpose and effect of the proposed agreement was to regulate the terms and conditions of employment and that the agreement was not intended to undermine the operation of the Act. As such, the Commission exercised its discretion under section 233 of the Act to approve the agreement with modifications to remove the prohibited content. The Commission issued an order approving the proposed agreement with the specified modifications, thereby resolving the dispute between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established