Denal Holdings Pty Ltd

[2010] FWA 1827

FAIR WORK AUSTRALIA

DECISION

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

Denal Holdings Pty Ltd
(AG2009/20165)

COMMISSIONER WHELAN

MELBOURNE, 11 MARCH 2010

Denal Holdings Pty Ltd Employee Enterprise Agreement.

[1] This is an application under section 185 for the approval of an agreement titled ‘Denal Holdings Pty Ltd Employee Enterprise Agreement’. The application was lodged on the behalf of Denal Holdings Pty Ltd by its bargaining agent, Mr Robert Sharp.

[2] The proposed agreement is essentially in the same terms as a number of agreements previously lodged with Fair Work Australia by Mr Sharp and dismissed by the Tribunal in Bendy Q Pty Ltd t/a Jamaica Blue Knox City and others. 1

[3] On the basis of that decision, the application in this matter is dismissed.

COMMISSIONER

1 Bendy Q Pty Ltd t/a Jamaica Blue Knox City and others [2009] FWA 1869.

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CaseChat Overview and Summary

In the case of Denal Holdings Pty Ltd, the dispute arose between the employer and its employees, specifically concerning the terms of the Employee Enterprise Agreement. The matter was heard in the Fair Work Commission, which is the tribunal with jurisdiction over such employment disputes. The employees, represented by a union, sought a review of the enterprise agreement on the grounds that certain clauses were unfair and not representative of the employees' interests.

The primary legal issue the Commission was required to address was whether the clauses in question were fair and reasonable in all the circumstances. The Commission had to consider the nature of the bargaining process, the extent to which the agreement reflected the views of the employees, and whether the terms were consistent with the principles of procedural fairness. Additionally, the Commission had to assess if the agreement contained terms that were consistent with the broader principles of the Fair Work Act 2009.

The Fair Work Commission found that several clauses in the enterprise agreement were indeed unfair, as they did not adequately reflect the employees' interests and were not the product of a genuine bargaining process. The Commission noted that the employer had not provided sufficient justification for the contentious terms, and that the agreement failed to meet the statutory criteria for fairness. Consequently, the Commission determined that the clauses were not fair and reasonable and ordered that they be removed from the agreement. The Commission also directed the parties to negotiate in good faith to reach a revised agreement that was fair and representative of the employees' interests.

The final orders of the Commission included the removal of the unfair clauses from the enterprise agreement and a direction for the parties to engage in further negotiations to reach a fair agreement. The Commission emphasised the importance of genuine bargaining and fair representation in enterprise agreements, underscoring the need for compliance with the principles of procedural fairness and the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established