Diamond Protection Pty Ltd T/A Diamond Protection

[2024] FWCA 1055

[2024] FWCA 1055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Diamond Protection Pty Ltd T/A Diamond Protection

(AG2024/629)

MINING AND ENERGY UNION VICTORIA - DIAMOND PROTECTION HAZELWOOD AGREEMENT 2023

Security services
COMMISSIONER PERICA	MELBOURNE, 25 MARCH 2024

Mining and Energy Union Victoria - Diamond Protection Hazelwood Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Mining and Energy Union Victoria - Diamond Protection Hazelwood Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 5 December 2023. It follows the Amending Act genuine agreement provisions apply.

1. Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 26 February 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

1. The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

2. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. This matter was listed for a mention hearing on 20 March 2024 to clarify issues surrounding explanation of the Agreement to employees, the manner in which employees were informed of the method of voting and opportunity to vote. In attendance were Mr. Kliger, Chairman of the Applicant and Mr. Devadas, the Chief Operating Officer. I issued directions for further material following the mention.

1. On 23 March 2024, the Applicant filed Statements of Mr. Kliger, Mr. Devadas and Mr Zekic, an Employee Union Representative. I am satisfied all reasonable steps have been taken to explain the terms of the proposed agreement consistent with Principles 8 to 15, that the employees were fully informed of the time, place and method of voting consistent with Principle 16 and that employees were given a reasonable opportunity to vote in a free and informed manner consistent with Principle 15.

1. The Mining and Energy Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 25 March 2024. It will operate from 1 April 2024 as required by section 54 of the Act. The nominal expiry date is 1 December 2027.

COMMISSIONER

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Annexure A