DSI Underground Australia Pty Limited Summary

[2023] FWCA 2398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DSI Underground Australia Pty Limited

(AG2023/2486)

DSI UNDERGROUND AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 1 AUGUST 2023

Application for approval of the DSI Underground Agreement 2023.

An application has been made for approval of an enterprise agreement known as the DSI Underground Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DSI Underground Australia Pty Limited. The Agreement is a single enterprise agreement.

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

The Australian Workers’ Union, 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 consultation term in the Agreement does not meet the requirements of s.205(1A) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 August 2023. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

DSI Underground Australia Pty Limited recently appeared before the Fair Work Commission in an application seeking approval of the DSI Underground Agreement 2023. The application was made by the employer under section 234 of the Fair Work Act 2009, seeking an enterprise agreement to apply to employees who were members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The union opposed the application on the basis that the agreement did not meet the better-off-overall test, which requires that employees be no worse off, and at least some employees be better off, financially as a result of the agreement.

The primary issue before the Commission was whether the proposed agreement met the statutory requirement that it provide for employees to be no worse off overall financially than they would have been under their applicable award. The union argued that the proposed agreement would result in employees being worse off financially due to reduced shift penalties and weekend loadings, among other things. The employer, on the other hand, argued that the proposed agreement provided for better overall financial outcomes for employees by providing for increased wages, improved shift penalties, and additional benefits.

The Commission found that the proposed agreement did meet the no worse off overall test. The Commission noted that while some employees may be worse off financially in certain respects, such as reduced shift penalties and weekend loadings, they would be better off overall as a result of the increased wages and improved shift penalties. The Commission further found that the agreement provided for a number of additional benefits, such as improved leave provisions and the establishment of a new employee assistance program. The Commission was satisfied that the proposed agreement provided for employees to be better off overall financially and approved the agreement.

In approving the agreement, the Commission made an order that the DSI Underground Agreement 2023 be approved as a registered agreement under section 183 of the Fair Work Act 2009. The agreement is to be registered by the Registrar of the Fair Work Commission and will apply to employees who were members of the CFMEU from the date of registration.

DSI Underground Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established