Dynaflo Holdings Pty Ltd as Trustee for the Jewels Unit Trust

[2025] FWCA 2111

[2025] FWCA 2111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dynaflo Holdings Pty Ltd as Trustee for the Jewels Unit Trust

(AG2025/1571)

DYNAFLO JEWELS ENTERPRISE AGREEMENT 2025-2029

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 27 JUNE 2025

Application for approval of the Dynaflo Jewels Enterprise Agreement 2025-2029

1. An application has been made for approval of an enterprise agreement known as the Dynaflo Jewels Enterprise Agreement 2025-2029 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dynaflo Holdings Pty Ltd as Trustee for the Jewels Unit Trust. The Agreement is a single enterprise agreement.

1. When the AMWU filed its form F18 on 30 May 2025, it acknowledged its position as a bargaining representative for the Agreement and while it indicated it wants the Agreement to cover it, it raised a number of objections to the approval of the Agreement. Both the Applicant and AMWU filed additional materials, and a hearing was held on 20 June 2025. Each of the objections follow.  

1. Persons other than employees eligible to vote were asked and did vote: The AMWU alleged that persons other than those employees to be covered by the Agreement were asked to vote and did vote on the proposed agreement. The Applicant provided a signed witness statement from Ms Priya John[1] which confirms that all 28 eligible employees, being blue collar/ waged employees covered by the Manufacturing and Electrical Awards were included in the process and asked to vote. Further details were submitted including the job title, start date and employment date[2] which shows that all employees held job titles consistent with coverage of the relevant modern awards and coverage of the Agreement.  

1. It was further raised that employees in sites other than Victoria and Western Australia were asked to vote on the Agreement. The Applicant confirmed that employees covered by the Agreement are employed in Victoria and Western Australia. There appeared to be some confusion with a separate and unrelated entity operating in Queensland and South Australia. During the hearing this issue was clarified and subsequently the objection withdrawn.  

1. Having reviewed the materials I am satisfied that the Agreement applies to employees employed in Victoria and Western Australia and only those employees eligible to be covered, voted on the Agreement. The Agreement covers trade / blue collar / wage employees and not management or clerical staff. There is no evidence of voting of any persons not eligible to participate in the vote. Further, any suggestion the employees covered by the Agreement are not fairly chosen is not substantiated. The employees are fairly chosen geographically and by occupation.

1. Was the casual employee employed at the time and eligible to vote:  Ms John confirmed that the one employee identified in the form F17B was the only casual employee and provided evidence of the time sheets for the relevant period to show that the employee was eligible to be invited to vote. I am satisfied by the evidence that the one casual employee was employed at the time of the vote and therefore was eligible to cast a vote.  

1. Whether the Commission can be satisfied that a majority of employees eligible to vote cast a valid vote in view of what has been described as a slim majority: Ms John states that the 28 employees were given an opportunity to vote. She further states that the Applicant utilised CiVS to conduct the vote. A copy of the CiVS declaration of results was tendered into evidence.

1. The ballot agent is a recognised ballot agent and having reviewed the materials for conducting the vote and the final declaration of results report I am satisfied that the vote was conducted accordingly. Further, on the evidence of the group of 28 employees I am satisfied that all were eligible to participate in the vote. It is required that a majority is met for approval of the Agreement. In this instance of the 28 eligible to vote, 20 cast a vote and 14 voted to approve which is a majority of those that cast a vote. There is no evidence as to why 8 chose not to cast a vote. It is the prerogative of the employees to exercise their right to participate or not and in the absence of any evidence otherwise I cannot conclude that the majority vote is invalid.  

1. Allegations that the Applicant refused to recognise the AMWU as a bargaining representative and refused to bargain with the AMWU: Ms Johns states that on 23 October 2024 it received an undated “commence bargaining” letter from the AMWU. On 5 November 2024, Solve Legal on behalf of the Applicant replied requesting a list of complaints or concerns in relation to the request to bargain. She states that they received no response. On 8 November 2024, Solve Legal again wrote to the AMWU asking what the union wished to bargain for. On 11 November 2024 a response simply said, “protect entitlements as well as conditions and ensure a fair work environment for our members.” On 14 March 2025 the AMWU made an enquiry about the bargaining. On 27 March 2025 Solve Legal wrote again asking for a log of claims. No response was received. Ms Johns attached each of the emails to her statement into evidence.[3]  

1. The AMWU further contends that the Applicant’s materials, namely the F17B includes a false or misleading statement regarding the rights of employees to be represented in bargaining and the Q and A statement provided to employees fails to explain that the AMWU is the default bargaining representative. The Applicant contends that the explanatory statement handed to employees made clear the AMWU was a default bargaining representative.   

1. I am not satisfied that the Applicant refused to recognise the AMWU, nor did it mislead employees that the AMWU was not a default bargaining representative. The explanatory document issued to employees clearly recognises the AMWU, the Notice of Employee Representational Rights (NERR) is in the prescribed form and notifies employees of their right to be represented during the bargaining process. The evidence shows reasonable steps by the Applicant to engage with the AMWU but for no known reason, the AMWU representative did not engage directly in bargaining with the Applicant by producing a log of claims or recommend and engagement process. Having reviewed the materials I am not satisfied that there are any concerns regarding this objection.

1. An alleged failure to issue the NERR to each employee at the relevant time: Ms Johns states that all employees eligible to be covered by the Agreement were given a printed and electronic copy of the NERR and supporting documents in addition to a copy being posted on the notice board. The managers had a briefing on 14 November 2024 and staff briefings were held on 15 November where printed copies of the NERR and other documents were handed to employees in Victoria and WA.  The one employee absent at the WA staff meeting was emailed the NERR with the additional documents. In addition to the hard printed copies, the Applicant emailed the materials to those employees without a company email to their known private email address. 

1. The issued NERR is consistent with the prescribed form and there is evidence that the NERR was not only issued by hand, but also by email and affixed to the notice board at the place of work. Further there is no evidence that the NERR was not issued at the appropriate time. Bargaining was initiated by the employer when it agreed to bargain by issuing the NERR on 15 November 2024. I do observe that the AMWU requested to bargain in a letter dated 23 October 2024, but did not respond to the Applicant with any detail concerning what it wished to bargain. On this basis I am satisfied that the notification time was on 15 November 2025 when the employer advised employees that it wished to bargain. The materials provided to employees makes clear the intention to bargain for an agreement.

1. Whether the Applicant has taken all reasonable steps to explain the terms of the agreement and took into consideration of the circumstances of the employees. The AMWU questions whether all reasonable steps have been taken to explain the terms of the Agreement particularly in the context of the background and age of employees. It further questions whether the Applicant’s reliance on the explanatory statement containing tables satisfy the requirements of the Act. Ms Johns states that on 30 April 2025, an all-staff briefing was held with each team present to explain the commencement of the access period, the proposed Agreement and related information and the voting process. In WA printed copies of all materials were handed to staff by the WA management team and in Victoria materials were handed out by the Operations Manager.  One employee was absent on the day therefore the complete set of information was emailed to them. The Operations Manager for Victoria, Mr Vishnu Rajendranath provided a signed statement confirming all steps taken in the Victorian branch. The Operations Manager further added that on 30 April 2025 following the briefing session he collated the Victorian staff questions and sent them through to the People and Culture Advisor which were consolidated in one document with relevant answers and distributed to all staff by hand and electronically on 7 May 2025. Only one employee was absent on medical leave, therefore that employee was sent the questions and answers by email.  

1. Further, Ms Johns states that the group of employees is not so culturally and linguistically diverse affecting their ability to understand English. The Applicant confirmed there were no non-English speaking employees. In respect to the one employee under 21 years of age, it confirmed the employees age was no barrier requiring additional support.

1. I am satisfied that the materials presented to employees were clear and unambiguous, employees were given the NERR at the appropriate time and due to the absence of nominated bargaining representatives bargaining was direct with employees. All employees were provided with materials to make an informed decision on the offer to them. The draft agreement and additional materials were handed to employees at the start of the access period and meetings with employees occurred. I observe there were meetings of all employees on 30 April and again on 7 May 2025, before the vote opened on 9 May 2025. The content of the Agreement is not a substantial departure from the application of the relevant awards with the main change being the remuneration. This information was apparent to employees before they engaged in the vote. I am satisfied reasonable steps have been taken to explain the Agreement.     

1. Whether the Commission can be satisfied that reasonable steps have been taken to ensure genuine agreement. In raising this issue, the AMWU further questions whether the process of agreement making was authentic and if there was genuine understanding of what was approved in accordance with the statement of principles. The Applicant contends that the Agreement is an indication that expectations have been met, as employees were invited to comment on the draft and did on a number of occasions. Ms Johns says that employees engaged in staff briefings on 15 November 2024 and 30 April 2025. At the April meeting, employees asked questions and were given copies of supporting materials for their consideration. A consolidated question and answer document was distributed to staff on 7 May 2025.   

1. The Applicant further submits that a plain reading of the Explanatory Document makes clear that the only departure from the terms of the relevant award is the improved rates of pay. It further submits that its provision of relevant materials to employees satisfies the principles in One Key.[4]  

1. Consistent with my observation above, I am satisfied that employees engaged in the process and the employer undertook reasonable steps to explain the Agreement, explain the difference in the Agreement with the terms of the relevant awards and the explanation in the circumstances was provided in an appropriate manner. There is no evidence that employees did not exercise their right to vote having been provided with all reasonable materials to make an informed decision.

1. Finally, the AMWU raised the requirement for the Commission to be satisfied that approving the Agreement is not inconsistent with or undermines the good faith bargaining requirements. The AMWU did not press this objection strongly. This concern raised by the AMWU relates to the requirement of bargaining representatives to meet good faith bargaining principles during bargaining. Ordinarily any concerns are raised during the bargaining process rather than at approval stage. Good faith bargaining relates to attending meetings at reasonable times, responding to proposals, giving consideration to proposals, refraining from capricious acts and recognising bargaining representatives. I do observe that no applications were made during the bargaining process for good faith bargaining orders relating to s.228 of the Act, nor is there any evidence that good faith bargaining did not occur consistent with the meaning in s.228 of the Act. On this basis there is no justification to not approve the Agreement provided I take into consideration the materials before me and the requirements of ss.186, 187, 188, 193 and 193A and the notice for coverage under s.183 of the Act.

1. Therefore further to my conclusions above I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval 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.

1. 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.

1. The Agreement is approved and in accordance with s.54, will operate from 4 July 2025. The nominal expiry date of the Agreement is 26 June 2029.

COMMISSIONER

[1] Dated 10 June 2025.

[2] Annexure 1 to the witness statement of Priya John.

[3] Annexure 13 to the witness statement.

[4] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [112].

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