Hope Diving Services Australia Pty Ltd T/A HDSA Group Summary

[2023] FWCA 904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hope Diving Services Australia Pty Ltd T/A HDSA Group

(AG2023/627)

HOPE DIVING SERVICES AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2023-2027

Building services
DEPUTY PRESIDENT BOYCE	SYDNEY, 27 MARCH 2023

Application for approval of the Hope Diving Services Australia Pty Ltd Enterprise Agreement 2023-2027

An application has been made for approval of an enterprise agreement to be known as the Hope Diving Services Australia Pty Ltd Enterprise Agreement 2023-2027 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Hope Diving Services Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 22 March 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 April 2023. The nominal expiry date of the Agreement is 27 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision of Hope Diving Services Australia Pty Ltd T/A HDSA Group, the Fair Work Commission was asked to approve the enterprise agreement proposed by the employer, Hope Diving Services Australia Pty Ltd, for the period 2023-2027. The agreement was subject to scrutiny under the Fair Work Act 2009, with a particular focus on its compliance with the requirements for enterprise agreements, including provisions relating to minimum wages and conditions. The dispute centred on the fairness and practicality of various terms within the agreement, specifically whether they met the criteria for being "better off overall" for the employees involved.

The primary legal issues before the Commission involved assessing the fairness and practicality of the proposed agreement. The Commission had to determine if the agreement provided for a fair and reasonable balance of benefits and detriments, taking into account the overall economic and employment context. Additionally, the Commission examined whether the agreement contained any unfair terms that might undermine the rights and protections afforded to employees under the Fair Work Act.

The Fair Work Commission found that the proposed agreement was fair and reasonable. The Commission noted that the agreement provided for a fair balance of benefits and detriments, taking into account the economic and employment context. The Commission also found that the agreement did not contain any unfair terms and that it was practical in its operation. The Commission was satisfied that the agreement provided for a fair and reasonable balance of benefits and detriments, taking into account the overall economic and employment context. The Commission also found that the agreement did not contain any unfair terms and that it was practical in its operation.

The Fair Work Commission approved the enterprise agreement, thereby formalising the terms of employment for the specified period. The decision underscores the importance of achieving a balance between the needs of employers and the rights of employees, ensuring that any agreement benefits both parties while adhering to the legislative framework designed to protect workers' rights.

Hope Diving Services Australia Pty Ltd T/A HDSA Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established