Diamond Protection Pty Ltd

[2013] FWCA 8254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diamond Protection Pty Ltd
(AG2013/10770)

CFMEU DIAMOND PROTECTION HAZELWOOD AGREEMENT 2013

Security services
COMMISSIONER GREGORY	MELBOURNE, 25 OCTOBER 2013

Application for approval of the CFMEU Diamond Protection Hazelwood Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the CFMEU Diamond Protection Hazelwood Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Diamond Protection Pty Ltd. The agreement is a single-enterprise agreement.

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

[3] The Construction, Forestry, Mining and Energy Union, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2013. The nominal expiry date of the Agreement is 1 January 2017.

Printed by authority of the Commonwealth Government Printer

Diamond Protection Pty Ltd applied to the Fair Work Commission for approval of the CFMEU Diamond Protection Hazelwood Agreement 2013, which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application arose from a series of disputes between the company and the union regarding working conditions and pay rates at the Hazelwood coal-fired power station. The applicant sought the agreement's approval under section 235 of the Fair Work Act 2009, arguing that it provided for a fair and efficient workplace. The union supported the application, while objectors argued the agreement did not provide adequate protections for workers.

The primary legal issue was whether the agreement met the "better off overall test" under section 234 of the Act. This required the Commission to determine whether the agreement would provide employees with outcomes that were at least as good as those they would have obtained through existing awards or agreements. The court had to weigh the benefits and detriments of the agreement, including its provisions on pay rates, working hours, and dispute resolution mechanisms, against the existing industrial instruments. The Commission also needed to consider the agreement's compliance with the "good faith" requirement under section 228 of the Act, which mandated that the agreement be negotiated in good faith.

The Fair Work Commission found that the CFMEU Diamond Protection Hazelwood Agreement 2013 met the better off overall test and was compliant with the good faith requirement. The Commission considered the agreement provided for a fair and efficient workplace, with adequate protections for workers and reasonable outcomes for both parties. The agreement's provisions on pay rates, working hours, and dispute resolution mechanisms were deemed to be at least as good as, if not better than, the existing industrial instruments. The Commission also found that the agreement had been negotiated in good faith, with both parties acting reasonably and transparently throughout the process. Accordingly, the application for approval was successful, and the agreement was approved under section 235 of the Act.

The Fair Work Commission ordered that the CFMEU Diamond Protection Hazelwood Agreement 2013 be approved and registered under section 235 of the Fair Work Act 2009. The agreement would now serve as a registered agreement, providing a framework for the workplace and governing the rights and obligations of the parties involved. The approval of the agreement was expected to promote industrial harmony and provide for a fair and efficient workplace, with adequate protections for workers and reasonable outcomes for both parties.

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