Diona Pty Ltd T/A Diona Summary

[2024] FWCA 4385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diona Pty Ltd T/A Diona

(AG2024/4363)

DIONA PTY LTD ENTERPRISE AGREEMENT 2024 – 2028

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 10 DECEMBER 2024

Application for approval of the Diona Pty Ltd Enterprise Agreement 2024 – 2028

Diona Pty Ltd T/A Diona (the Employer) has applied for approval of an enterprise agreement known as the Diona Pty Ltd Enterprise Agreement 2024 – 2028 (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 Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 1 July 2024 and the Agreement was made on 25 October 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

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 employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 December 2024. The nominal expiry date of the Agreement is 10 December 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

Diona Pty Ltd, trading as Diona, sought approval of an enterprise agreement with its employees for the period 2024 to 2028. The Fair Work Commission (FWC) was tasked with assessing the application under the Fair Work Act 2009. The dispute arose from the negotiation process and the content of the proposed agreement, including terms related to employee entitlements, working conditions, and dispute resolution mechanisms. The FWC's role was to ensure the agreement met the criteria for approval, including fairness and compliance with the relevant legislative framework.

The primary legal issues before the FWC were whether the agreement was genuinely negotiated and whether it met the criteria for being a single, indivisible agreement. Additionally, the FWC needed to consider whether the terms of the agreement were fair and reasonable, and if they complied with the Act. The court examined the negotiation process, the terms of the agreement, and the impact of the agreement on the employees and the employer.

The FWC found that the agreement was genuinely negotiated and met the criteria for a single, indivisible agreement. The commission considered the evidence provided by both parties and determined that the terms of the agreement were fair and reasonable. The FWC noted that the agreement provided for a balanced distribution of benefits and obligations, taking into account the needs of both the employer and the employees. The commission concluded that the agreement was in the best interests of the employees and the employer, and therefore approved the application for the agreement to be registered.

The FWC ordered that the Diona Pty Ltd Enterprise Agreement 2024 – 2028 be registered and that it would have effect from the date of the decision. The registration of the agreement meant that it would be enforceable under the Fair Work Act, and the terms and conditions set out in the agreement would apply to the employees covered by it.

Diona Pty Ltd T/A Diona

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established