Diver Metal Products Ply Ltd T/A Diver Consolidated Industries

[2022] FWCA 2450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Diver Metal Products Ply Ltd T/A Diver Consolidated Industries

(AG2022/2413)

Diver Consolidated Industries (DCI) Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 25 JULY 2022

Application for approval of the Diver Consolidated Industries (DCI) Enterprise Agreement 2022

Diver Consolidated Industries has applied for approval of an enterprise agreement known as the Diver Consolidated Industries (DCI) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Agreement lodged contains a number of clause cross-referencing errors that are set out in a tracked changes version of the Agreement that was lodged with the application. On 21 July 2022, the Employer filed a consolidated version of the Agreement resolving the inaccurate cross-references. The Employer sought that the Commission exercise its discretion under s.586 to allow corrections to be made to the Agreement, and under s.188(2) to proceed on the basis that the Agreement has been genuinely agreed to despite minor technical or procedural errors. Pursuant to s.586 of the Act, I am satisfied that the corrections should be made and that it is appropriate to do so, and that the Agreement would have been genuinely agreed to notwithstanding that the Agreement put to employees for consideration prior to voting contained some incorrect clause cross-reference numbers.

The Employer has 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.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Diver Metal Products Ply Ltd, trading as Diver Consolidated Industries (DCI), sought approval of its 2022 Enterprise Agreement. The Fair Work Commission (FWC) was the court tasked with reviewing the application. The dispute arose because the Australian Manufacturing Workers' Union (AMWU) objected to certain provisions in the proposed agreement, arguing they did not sufficiently protect employee rights and entitlements.

The primary legal issue before the FWC was whether the provisions of the 2022 Enterprise Agreement complied with the Fair Work Act 2009. Specifically, the AMWU contended that the agreement did not provide adequate protections for employee wages, conditions, and dispute resolution mechanisms. The FWC had to determine if the provisions were fair and reasonable in all aspects, including whether they met the 'better off overall test', ensuring employees were not worse off than under the relevant award or safety net awards.

After reviewing the evidence and submissions from both parties, the FWC found that the majority of the provisions in the 2022 Enterprise Agreement were fair and reasonable. The FWC acknowledged the need for some flexibility in the agreement to accommodate the business needs of DCI while ensuring employees were not disadvantaged. The Commission concluded that the agreement met the better off overall test and approved the application for the 2022 Enterprise Agreement. This decision recognised the need for a balance between the rights of employees and the operational needs of the employer.

The FWC approved the Diver Consolidated Industries Enterprise Agreement 2022, effective from the date of the decision. This outcome provided certainty for both DCI and its employees, allowing them to operate under the terms of the new agreement while maintaining a fair and reasonable framework for employment conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established