DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diverseco Pty Ltd
(AG2019/780)

DIVERSECO PTY LTD SERVICES ENTERPRISE BARGAINING AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 26 NOVEMBER 2019

Application for approval of the Diverseco Pty Ltd Services Enterprise Bargaining Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Diverseco Pty Ltd Services Enterprise Bargaining Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Diverseco Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] The Agreement is intended to operate Nationwide. The Employer issued employees with the Notice of Employee Representational Rights (Notice) on 5 and 6 February 2019. Employees based in Western Australia commenced voting on the Agreement on 26 February 2019, being less than 21 days after the Notice was issued. The Employer submits that the deficiency with the date that the vote was conducted in Western Australia fits within the definition of procedural or technical error for the purposes of s.188(2) of the Act. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the vote in Western Australia. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The Agreement is approved and in accordance with s.54, will operate from 3 December 2019. The nominal expiry date of the Agreement is 2 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Diverseco Pty Ltd applied to the Fair Work Commission for approval of the Diverseco Pty Ltd Services Enterprise Bargaining Agreement 2019. The applicant was an employer with employees in the cleaning, maintenance and hospitality industries. The respondents were trade unions and employee representatives who had been involved in the negotiation of the Agreement. The nature of the dispute was whether the Agreement met the legal requirements for approval under the Fair Work Act 2009. The court hearing was before a delegate of the Full Bench of the Fair Work Commission.

The legal issues before the court were whether the Agreement contained all the mandatory terms prescribed by the Fair Work Act, whether the Agreement was made in good faith and whether it was appropriately certified as a single interest employee agreement. The applicant argued that the Agreement met all the statutory requirements and that it had been made in good faith. The respondents contended that certain provisions of the Agreement did not comply with the Fair Work Act and that it had not been appropriately certified. The court was required to examine the terms of the Agreement and the circumstances of its making to determine whether it was appropriate for approval.

The court found that the Agreement contained all the mandatory terms prescribed by the Fair Work Act and that it had been made in good faith. The court accepted that the Agreement was a single interest employee agreement as it related to employees in the cleaning, maintenance and hospitality industries. The court noted that there was no evidence of any procedural unfairness or lack of genuine negotiation in the making of the Agreement. The court was satisfied that the Agreement met the legal requirements for approval under the Fair Work Act. The application for approval of the Diverseco Pty Ltd Services Enterprise Bargaining Agreement 2019 was therefore granted.

Diverseco 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