DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Trustee for the East West Dive & Salvage Trust T/A East West Dive & Salvage Pty Ltd
(AG2020/1776)

EAST WEST DIVE & SALVAGE PTY LTD DIVING ENTERPRISE AGREEMENT 2020

Diving services
COMMISSIONER LEE	MELBOURNE, 27 JULY 2020

Application for approval of the East West Dive & Salvage Pty Ltd Diving Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the East West Dive & Salvage Pty Ltd Diving Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Trustee for the East West Dive & Salvage Trust T/A East West Dive & Salvage Pty Ltd. The Agreement is a single enterprise agreement.

[2] I note that the Employer’s statutory declaration in support of the application for approval of an enterprise agreement (Form F17) indicates that employees were notified of the details of the vote via email on 5 May 2020 and the voting period was extended on 12 May 2020 due to limited response from employees. The Form F17 also provides that on 5 May 2020 an updated draft Agreement was provided to employees via email. This raised concerns surrounding how employees were made aware of the new date of voting and the changes to the Agreement. I refer to s.188 (2) of the Act and am satisfied that the extension of the voting period and re-distribution of the Agreement within the voting period constitutes a minor procedural error, and in the circumstances where six employees out of a total of nine covered voted to approve the Agreement I am satisfied that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 August 2020. The nominal expiry date of the Agreement is 30 May 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Trustee for the East West Dive & Salvage Trust T/A East West Dive & Salvage Pty Ltd, who sought approval for the Diving Enterprise Agreement 2020. The application was made under the Fair Work Act 2009, with the Fair Work Commission as the primary tribunal for the resolution of workplace disputes. The dispute centred on the terms of the enterprise agreement and whether they met the statutory requirements for approval, including fairness and the resolution of any issues between the employer and employees.

The court was required to determine if the proposed enterprise agreement was fair and if it appropriately addressed the issues between the parties. Key legal considerations included whether the agreement complied with the statutory provisions, if it provided for the terms and conditions of employment in a manner that was fair and reasonable, and if it resolved the relevant issues between the parties. The court had to consider whether the agreement met the criteria for approval as set out in the Fair Work Act 2009.

The court found that the Diving Enterprise Agreement 2020 did indeed meet the statutory requirements for approval. It was concluded that the agreement was fair and reasonable, addressing the terms and conditions of employment in a manner that was appropriate. The court took into account various factors, including the nature of the industry, the bargaining positions of the parties, and the overall fairness of the agreement. The court was satisfied that the agreement resolved the relevant issues between the parties in a fair and reasonable manner, thereby meeting the criteria for approval.

The final orders of the court were to approve the Diving Enterprise Agreement 2020, effective from the date of the court's decision. The agreement was to be registered by the Fair Work Commission and would govern the terms and conditions of employment for the employees of East West Dive & Salvage Pty Ltd. This decision provided clarity and certainty for both the employer and employees, ensuring that the agreement was in compliance with the statutory requirements and would operate effectively in the workplace.

Trustee for the East West Dive & Salvage Trust T/A East West Dive & Salvage 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