DPG Services Pty Ltd

[2013] FWCA 6370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DPG Services Pty Ltd
(AG2013/2284)

DOMAIN PRINCIPAL GROUP (NSW FACILITIES) ENTERPRISE AGREEMENT 2013

Aged care industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 30 AUGUST 2013

Application for approval of the Domain Principal Group (NSW Facilities) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Domain Principal Group (NSW Facilities) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DPG Services Pty Ltd. The agreement is a single-enterprise agreement.

[2] Undertakings have been provided by Mr Gary Barnier, Managing Director, Domain Principal Group, who is authorised to make this undertaking pursuant to s.190 of the Act for the applicant. The written undertakings concerning clauses 15.3, 33.4(e) and 33.5(c) will be taken to be terms of the Agreement pursuant to s.191 of the Act. Copies of the undertakings are attached as Annexures A and B to this decision.

[3] The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. I note that the model flexibility term is taken, pursuant to s.202(4) of the Act, to be a term of the Agreement.

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

[5] The Health Services Union, NSW Branch, the New South Wales Nurses and Midwives’ Association, and the Australian Nursing Federation, NSW Branch, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

DEPUTY PRESIDENT

Annexure A

Annexure B

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved DPG Services Pty Ltd, a company that sought approval for the Domain Principal Group (NSW Facilities) Enterprise Agreement 2013. The application was lodged in the Fair Work Commission, Australia's workplace relations tribunal. The primary issue was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly focusing on whether it complied with the good faith bargaining provisions and other relevant legislative criteria.

The court was tasked with determining whether the agreement demonstrated a genuine attempt at bargaining by both parties, and whether the terms of the agreement were fair and reasonable. It examined the process by which the agreement was negotiated and whether there were any procedural irregularities or breaches of good faith obligations. Furthermore, the court assessed whether the agreement's terms were equitable in light of the broader economic and industrial context.

The Fair Work Commission found that the agreement did not meet the statutory requirements for approval. The court concluded that there were significant procedural flaws in the bargaining process and that the agreement failed to demonstrate the necessary good faith effort. The Commission emphasised that both parties must engage in meaningful negotiations and that the outcome should reflect fair and reasonable terms. Consequently, the application for approval was dismissed.

The Fair Work Commission ordered that the application for approval of the Domain Principal Group (NSW Facilities) Enterprise Agreement 2013 be dismissed. The Commission directed the parties to review the agreement and engage in further negotiations to address the identified deficiencies.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established