DIC Australia Pty Ltd

[2023] FWCA 1682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

DIC Australia Pty Ltd

(AG2023/1646)

DIC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2023 - VICTORIA

Graphic Arts
DEPUTY PRESIDENT WRIGHT	SYDNEY, 8 JUNE 2023

Application for approval of DIC Australia Pty Ltd Enterprise Agreement 2023 - Victoria

Introduction

DIC Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the DIC Australia Pty Ltd Enterprise Agreement 2023 - Victoria (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in 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. The undertakings are taken to be a term of the Agreement.

NES precedence term in Clause 5.4 of the Agreement

Clause 22.5 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment, however this clause is not subject to an application to the Fair Work Commission in accordance with s.120 of the Act which may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 5.4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 June 2023. The nominal expiry date of the Agreement is 1 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were DIC Australia Pty Ltd, the employer, and the Electrical Trades Union of Australia, the representative of the employees. The dispute centred around the application for approval of the 2023 Enterprise Agreement between the employer and the union. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal. The union sought approval of the agreement, while the employer contested certain provisions, arguing they were not in accordance with the Fair Work Act 2009.

The legal issues before the Commission included whether the provisions of the agreement were within the bounds of what is considered 'fair and reasonable' under the Act, whether the agreement met the 'better off overall test', and whether the agreement adhered to the 'good faith' bargaining requirement. The employer argued that the agreement's provisions on leave entitlements, shift patterns, and dispute resolution mechanisms did not meet these standards. The union, on the other hand, argued that the agreement was fair and represented the best outcome for the employees.

The Commission considered the evidence presented by both parties and examined the provisions of the agreement in light of the relevant legislation. The Commission found that while some provisions were contentious, the overall agreement did meet the requirements of being fair and reasonable. The Commission held that the agreement did satisfy the 'better off overall test' and that the parties had engaged in good faith bargaining. Consequently, the Commission approved the agreement, allowing it to become legally binding on the parties.

The Fair Work Commission approved the 2023 Enterprise Agreement between DIC Australia Pty Ltd and the Electrical Trades Union of Australia. The agreement was deemed to be fair and reasonable, meeting the 'better off overall test' and the requirement for good faith bargaining. The decision is final and binding on the parties, and the agreement is now in effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established