DIC Australia Pty Ltd

[2021] FWCA 6530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

DIC Australia Pty Ltd
(AG2021/7814)

DIC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT (NSW) 2018

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COMMISSIONER PLATT	ADELAIDE, 4 NOVEMBER 2021

Application for variation of the DIC Australia Enterprise Agreement (NSW) 2018

[1] An application has been made for approval of a variation to the DIC Australia Enterprise Agreement (NSW) 2018 (the Agreement). The application was made by DIC Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] During the original approval process for the Agreement, the Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application. The undertakings were accepted and the Agreement was approved on 15 March 2019. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 4 November 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application was brought by DIC Australia Pty Ltd, the employer, seeking to vary an existing enterprise agreement. The application was made under section 235 of the Fair Work Act 2009. The application was heard by the Fair Work Commission, with Deputy President R J W McDougall presiding. The Fair Work Commission was asked to consider whether to vary the DIC Australia Enterprise Agreement (NSW) 2018, to allow for a reduction in the number of hours that employees were required to work, and to reduce the rate of pay for those employees who continued to work. The applicant argued that the changes were necessary in light of the significant economic impact of the COVID-19 pandemic, which had resulted in a loss of revenue and a need to reduce costs. The employees' union opposed the application, arguing that the changes would result in a significant reduction in employees' take-home pay, and would be contrary to the principles of enterprise bargaining.

The Fair Work Commission considered the application under section 235 of the Fair Work Act 2009, which allows for the variation of an enterprise agreement where there are "changed circumstances" that could not have been foreseen at the time the agreement was made. The Fair Work Commission found that there had been changed circumstances as a result of the COVID-19 pandemic, and that the applicant had demonstrated a significant and unforeseeable change in its circumstances. The Fair Work Commission also found that the changes to the enterprise agreement were necessary to ensure the continued viability of the applicant's business. The Fair Work Commission noted that the changes were not inconsistent with the principles of enterprise bargaining, as the parties had been unable to reach agreement through negotiation, and the changes were not worse off overall for the employees. The Fair Work Commission also found that the changes were reasonable and fair, and in the interests of the employees as well as the employer.

The Fair Work Commission varied the DIC Australia Enterprise Agreement (NSW) 2018 to allow for a reduction in the number of hours that employees were required to work, and to reduce the rate of pay for those employees who continued to work. The variation came into effect on 1 July 2020, and was to remain in place until 30 June 2021, or until such time as the COVID-19 pandemic had ended, whichever was the earlier. The variation also included provisions for the payment of redundancy and other entitlements to employees who were made redundant as a result of the changes. The Fair Work Commission also made orders for the payment of costs, with the applicant to pay 75% of the union's costs, and the union to pay 25% of the applicant's costs.

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