DIC Australia Pty Ltd

[2022] FWCA 3758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DIC Australia Pty Ltd

(AG2022/4293)

DIC Australia Pty Ltd Enterprise Agreement (NSW) 2022

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 26 OCTOBER 2022

Application for approval of the DIC Australia Pty Ltd Enterprise Agreement (NSW) 2022

DIC Australia Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the DIC Australia Pty Ltd Enterprise Agreement (NSW) 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The AMWU 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) of the Act I note that the Agreement covers the AMWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 November 2022. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

The applicant, DIC Australia Pty Ltd, sought approval of its enterprise agreement with its employees under the Fair Work Act 2009. The application was heard by the Fair Work Commission, the administrative tribunal with jurisdiction over such matters. The dispute centred around the terms and conditions outlined in the proposed agreement, including wages, hours of work, and other employment conditions. The Commission was required to determine whether the agreement met the requirements of the Act, including whether it provided for fair and reasonable terms and conditions.

The central legal issue was whether the agreement satisfied the 'better off overall test', a statutory requirement that an enterprise agreement must ensure that employees are no worse off financially than they would be under the applicable award or registered agreement. The Commission also needed to consider whether the agreement complied with other statutory obligations, such as providing for reasonable notice periods and redundancy entitlements. Additionally, the Commission had to assess whether the agreement allowed for proper consultation and representation of employees.

After considering the submissions from both parties, the Commission found that the agreement met the statutory requirements and provided for fair and reasonable terms and conditions. The Commission determined that employees would not be worse off under the agreement and that it provided for appropriate notice periods and redundancy entitlements. The Commission was satisfied that the agreement allowed for proper consultation and representation of employees. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the DIC Australia Pty Ltd Enterprise Agreement (NSW) 2022, determining that it met the statutory requirements and provided for fair and reasonable terms and conditions. The agreement was deemed to satisfy the 'better off overall test' and complied with other statutory obligations. The Commission found that employees would not be worse off under the agreement and that it allowed for proper consultation and representation of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established