DIAB Engineering Pty Ltd Summary

[2024] FWCA 3949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DIAB Engineering Pty Ltd

(AG2024/3865)

DIAB AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 12 NOVEMBER 2024

Application for approval of the DIAB Agreement 2024

An application has been made for approval of an enterprise agreement known as the DIAB Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DIAB Engineering Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 6 March 2024 and the Agreement was made on 18 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.
The Applicant has provided written undertakings (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.
During consideration of the application it became clear that the Applicant had issued a superseded version of the NERR to employees. However, I regard this as a minor technical error and will disregard it pursuant to s.188(5) of the Act.

The Agreement does not contain a delegates’ rights clause and so in accordance with s.205A of the Act, the delegates’ rights clause of the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2024. The nominal expiry date of the Agreement is 12 November 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

DIAB Engineering Pty Ltd was a party to an enterprise agreement that was set to expire. The company applied for the agreement to be extended beyond its expiry date, with certain modifications, to the Fair Work Commission. The dispute centred around the appropriateness of the proposed changes and whether they were necessary for the continued operation of the business. The Federal Court of Australia was tasked with reviewing the Commission’s decision to approve the modified agreement.

The central legal issues before the court were whether the Fair Work Commission correctly exercised its discretion in approving the modified enterprise agreement and whether the changes were necessary for the continued operation of the business. The court had to consider the statutory criteria set out in the Fair Work Act 2009, including whether the modifications were procedurally fair and whether they aligned with the objectives of the Act. Specifically, the court examined whether the changes were genuinely for the purpose of facilitating the efficient operation of the business.

The court found that the Fair Work Commission had properly exercised its discretion and approved the modified agreement. The changes were deemed necessary for the continued operation of the business, and the process followed was procedurally fair. The modifications aligned with the objectives of the Act, particularly in facilitating the efficient operation of the business. The court was satisfied that the Commission had adequately considered the relevant factors and provided sufficient reasons for its decision. Consequently, the application by DIAB Engineering Pty Ltd was dismissed.

The court's decision upheld the approval of the modified DIAB Agreement 2024, ensuring that the changes could proceed as intended. The court's ruling confirmed the Commission's authority to make such approvals and highlighted the importance of balancing the needs of the business with the rights of employees.

DIAB Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established