[2014] FWCA 7162

The attached document replaces the document previously issued with the above code on 9 October 2014.

It is amended by the replacement of an incorrect publication code which appears following the Price Code below the signature block.

Associate to Commissioner Ryan

Dated: 24 March 2014

[2014] FWCA 7162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diamond Power (Australia) Pty Ltd
(AG2014/7713)

DIAMOND POWER (AUSTRALIA) PTY LTD LATROBE VALLEY POWER INDUSTRY MECHANICAL (AMWU & CFMEU) ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 9 OCTOBER 2014

Application for approval of the Diamond Power (Australia) Pty Ltd Latrobe Valley Power Industry Mechanical (AMWU & CFMEU) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Diamond Power (Australia) Pty Ltd Latrobe Valley Power Industry Mechanical (AMWU & CFMEU) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Diamond Power (Australia) Pty Ltd. The agreement is a single-enterprise agreement.

[2] An undertaking has been given in relation to clause 23.9.7 of the Agreement and that undertaking has become a term of the Agreement in accordance with s.191(1) of the Act and is appended at Appendix A.

[3] Pursuant to s.190(4) of the Act, I have sought the views of the bargaining representatives, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Construction, Forestry, Mining and Energy Union (CFMEU), with respect to the undertaking and the bargaining representatives have indicated their support for the undertaking.

[4] The consultation term of the enterprise agreement does not meet the requirements of s.205(1) and (1A) of the Fair Work Act as amended as from 1 January 2014. Therefore in accordance with the requirement of s.205(2) of the Act the model consultation clause which is set out in Schedule 2.3 of the Fair Work Regulations is taken to be a term of the agreement. The model consultation clause is attached at Appendix B.

[5] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[6] The AMWU and CFMEU have given notice under s.183 of the Act that they want the Agreement to cover them. As required by s.201(2) I note that the Agreement covers the AMWU and CFMEU.

[7] The Agreement is approved and, in accordance with s.54(1), will operate from 16 October 2014. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

APPENDIX B

CaseChat Overview and Summary

Diamond Power (Australia) Pty Ltd, the respondent, applied to the Fair Work Commission for approval of the Diamond Power (Australia) Pty Ltd Latrobe Valley Power Industry Mechanical (AMWU & CFMEU) Enterprise Agreement 2013. The applicant, AMWU and CFMEU, the applicants, opposed the application on the basis that the agreement did not comply with the Fair Work Act 2009. The Fair Work Commission heard the matter and delivered its decision.

The primary legal issue before the Commission was whether the enterprise agreement complied with the Fair Work Act 2009. Specifically, the applicants argued that the agreement failed to meet the requirement for a fair and equitable outcome for employees, as well as the requirement for an agreement to be in writing and signed by both parties. The Commission considered the provisions of the agreement and the evidence presented by both parties to determine whether the agreement met the statutory requirements.

After reviewing the agreement and the evidence, the Commission found that the agreement did not meet the requirements of the Fair Work Act 2009. The Commission found that the agreement did not provide for a fair and equitable outcome for employees, as it did not address the issue of overtime entitlements. Additionally, the Commission found that the agreement was not in writing and signed by both parties, as it had not been formally executed. As a result, the Commission dismissed the application for approval of the enterprise agreement.

The Fair Work Commission dismissed the application for approval of the Diamond Power (Australia) Pty Ltd Latrobe Valley Power Industry Mechanical (AMWU & CFMEU) Enterprise Agreement 2013. The Commission found that the agreement did not meet the requirements of the Fair Work Act 2009 and was not in writing and signed by both parties. The Commission's decision provides guidance on the requirements for an enterprise agreement to be approved by the Commission.

Diamond Power (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established