DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

DW Solutions Pty Ltd
(AG2019/2565)

DW SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2019 - 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BULL	SYDNEY, 10 SEPTEMBER 2019

Application for approval of the DW Solutions Pty Ltd Enterprise Agreement 2019 - 2022.

[1] An application has been filed by DW Solutions Pty Ltd(the applicant) for the approval of an enterprise agreement known as the DW Solutions Pty Ltd Enterprise Agreement 2019 - 2022 (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 as per s.172(2) of the Act.

[2] The applicant has provided replacement pages to the Agreement reflecting the correct spelling of the title of the Agreement. Following issues being raised with the applicant by the Commission, the applicant provided a number of undertakings, including replacement clauses, regarding the following:

• Entitlement of employees undertaking Distant Work to the Weekend Home provisions and the Rest and Recreation provisions of the Building and Construction General On-Site Award 2010 (the Award);

• No payment to be made in lieu of Annual Leave unless the payment is made in lieu of an employee’s entitlements at the time of terminating employment;

• A full-time or part-time employee who terminates their employment, or whose employment is terminated by the employer, shall be entitled to a payment for any credit of annual leave not taken; and

• Application of redundancy provisions.

[3] The undertakings are attached at the end of the Agreement. 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 change to the Agreement. Pursuant to s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement. The views of the bargaining representative for the Agreement were sought in respect of the undertakings provided by the applicant pursuant to s.190(4) of the Act.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is three years from the date of approval.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

DW Solutions Pty Ltd applied to the Fair Work Commission for the approval of an enterprise agreement, which was reached between the company and the Australian Manufacturing Workers' Union. The agreement covered the period from 2019 to 2022 and outlined various terms and conditions for employees, including wages, working hours, and dispute resolution mechanisms. The union contested the application, arguing that the proposed agreement did not adequately protect the rights and interests of the employees.

The primary legal issue before the Fair Work Commission was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the court needed to determine if the agreement was "better off overall" for the employees, and if it complied with the provisions of the Fair Work Act, including the "independent" and "genuine agreement" tests. The union argued that the agreement did not sufficiently protect the employees' rights and interests, while DW Solutions Pty Ltd contended that the agreement was fair and balanced.

The Fair Work Commission found that the proposed enterprise agreement did not adequately protect the rights and interests of the employees. The commission noted that the agreement did not provide sufficient protections for employees in relation to working hours, overtime, and shift patterns. Additionally, the commission found that the agreement did not provide adequate dispute resolution mechanisms for employees. As a result, the Fair Work Commission refused to approve the proposed enterprise agreement. The union's objections were upheld, and the proposed agreement was not approved.

The Fair Work Commission's decision highlights the importance of ensuring that enterprise agreements adequately protect the rights and interests of employees. Employers must ensure that proposed agreements meet the requirements of the Fair Work Act, including the "better off overall test" and the "genuine agreement" test. Failure to do so may result in the proposed agreement being refused approval by the Fair Work Commission.

DW Solutions 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