One Diversified (Aust.) Pty Ltd T/A Diversified

[2024] FWCA 3231

[2024] FWCA 3231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

One Diversified (Aust.) Pty Ltd T/A Diversified

(AG2024/3075)

ONE DIVERSIFIED (AUST.) PTY LTD NT SINGLE ENTERPRISE AGREEMENT 2024

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 11 SEPTEMBER 2024

Application for approval of the One Diversified (Aust.) Pty Ltd NT Single Enterprise Agreement 2024

1. One Diversified (Aust.) Pty Ltd T/A Diversified (the Employer) has applied for approval of an enterprise agreement known as the One Diversified (Aust.) Pty Ltd NT Single Enterprise Agreement 2024 (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.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 10 April 2024 and the Agreement was made on 2 August 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

1. 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 changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a workplace delegates’ rights term as required under s.205AS of the Act for agreements made on or after 1 July 2024. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Electrical, Electronic and Communications Contracting Award 2020 is attached to the Agreement and taken to be a term of it.

1. Section 188(1) of the Act requires the Commission to take into account the Statement of Principles on Genuine Agreement (Statement of Principles) made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Paragraph 15 of the Statement of Principles provides that employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner, which includes using a voting process that ensures the vote of each employee is not disclosed to or ascertainable by an employer.

1. In this instance, three employees were eligible to vote, with only two employees voting.  Both employees voting to make the Agreement.  The employees were required to email their vote to the Employer’s Operations Manager and HR Director. 

1. I sought further information from the Employer as to why the vote was conducted in this manner.  The Employer explained that all three eligible employees were working remotely without guaranteed access to a single physical location.

1. On 6 September 2024, through the Employer, I directed the two employees who voted in favour of approving the Agreement to each advise my chambers of their views in respect of the following:

a.Whether they had wished to vote against approving the Agreement;

b.Whether they felt disadvantaged or intimidated by having to provide their vote to the company’s Operations Manager and HR Director and whether that had any impact on how they voted in relation to the Agreement;

c.Whether they disagree with any of the statements made by the Employer about the voting process that was conducted.

1. The two employees were advised that they were not required to copy in each other or the Employer into their response to chambers if they did not wish to.

1. Both employees corresponded with my chambers on 10 September 2024, confirming that neither of them wished to vote against approving the Agreement, did not feel disadvantaged or intimidated having to provide their vote to the Employer in the manner required by the Employer, and did not disagree with any of the statements made by the Employer about the voting process that was conducted.

1. Having obtained direct correspondence from the two employees who voted to make the Agreement, noting their strong convictions that despite the method of voting they wished to approve the Agreement and did not feel disadvantaged or intimidated by the process, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.186(2)(a) of the Act. 

1. It is unnecessary to obtain the views of the third employee who did not vote in the circumstance where the two employees who did vote for the Agreement have provided direct correspondence to the Commission and both support the Agreement being approved. I would have obtained the views of the third employee if one or more of the two voting employees expressed views about being uncomfortable with the voting process.

1. I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 September 2024. The nominal expiry date of the Agreement is 11 September 2027.

COMMISSIONER

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Annexure A – Undertakings