DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DIC Australia Pty Ltd
(AG2018/6237)

DIC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT (NSW) 2018

Graphic Arts
COMMISSIONER PLATT	ADELAIDE, 15 MARCH 2019

Application for approval of the DIC Australia Pty Ltd Enterprise Agreement (NSW) 2018.

[1] An application has been made for approval of an enterprise agreement known as the DIC Australia Pty Ltd Enterprise Agreement (NSW) 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by DIC Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 February 2019.

[3] On 8 March 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 11 March 2019 The undertaking deals with the following topics:

• Clause 4.1.2(e)(ii) of the Agreement, which relates to notice of termination for apprentice, shall operate consistent with the National Employment Standards (NES).

• Clause 4.2.6 of the Agreement shall not apply.

• The Applicant undertakes that the following classifications in Part A are equivalent to the following classifications in Part B:

• Part A: Level 1 = Part B: Level 2

• Part A: Level 2 = Part B: Level 4

• Part A: Level 3 = Part B: Level 6

• The minimum amount payable to an employee eligible for a support wage at clause 5.16 of Part B of Agreement will be no less than the minimum amount payable as set out under the Graphic Arts, Printing and Publishing Award 2010 at the date of commencement of the Agreement (presently set at $86.00 per hour)

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (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 this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application for the approval of the DIC Australia Pty Ltd Enterprise Agreement (NSW) 2018 was heard by the Fair Work Commission, with the applicant being DIC Australia Pty Ltd. The respondent, who contested the application, was the Transport Workers Union of Australia. The dispute centred on the proposed terms and conditions of employment as outlined in the enterprise agreement, which both parties argued either met the legal requirements for approval or did not.

The central legal issues the court had to resolve were whether the enterprise agreement complied with the Fair Work Act 2009, specifically in relation to the procedural fairness and the procedural requirements for its approval. The court examined whether the agreement was made in good faith, whether it met the "better off overall test", and if the requisite procedural steps were adhered to in its formation and submission.

The Fair Work Commission determined that the enterprise agreement did not meet the necessary standards under the Fair Work Act 2009. The court found that the agreement did not adequately address several key employment terms and conditions, which were critical for meeting the "better off overall test". Furthermore, there were procedural shortcomings in how the agreement was formed, including issues with the representation of employee interests. Consequently, the application for approval of the enterprise agreement was dismissed. The decision was based on a comprehensive review of the evidence presented and the applicable legal principles.

DIC Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established