DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DAIS Vic Pty Ltd
(AG2019/2960)

WATER AND GENERAL WORKS ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	SYDNEY, 10 SEPTEMBER 2019

Application for approval of the Water and General Works Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Water and General Works Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DAIS Vic Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] I note the Employer has erroneously referred to AG2019/1042 in the written undertakings provided; however, it is clear the undertakings provided relate to this application.

[5] I note that clauses 3.1.4 (e) and 3.4.2 (b) of the Agreement provide that the Employer will be entitled to deduct any monies due from an employee’s remuneration. In my view, the clauses may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 3.1.4 – Casual employment

• Clause 5.9.1 – Occupations

• Clause 6.2.2 – Personal Leave

• Clause 6.4.2 – Emergency Services Leave

However, noting clause 1.8.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 September 2019. The nominal expiry date of the Agreement is 9 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, DAIS Vic Pty Ltd, sought approval of the Water and General Works Enterprise Agreement 2019 from the Fair Work Commission. The dispute arose from disagreements over the terms and conditions of employment for the workers covered by the agreement. The Commission was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement provided adequate coverage and protections for the employees, and whether it complied with the formal requirements and provisions of the Fair Work Act. Additionally, the Commission had to consider whether the agreement was in the best interests of the employees and whether it adhered to the principles of industrial fairness and equity.

The Commission found that the agreement was comprehensive and met the formal requirements set out in the Fair Work Act. It provided for adequate coverage, fair terms and conditions of employment, and included provisions that were in the best interests of the employees. The Commission also noted that the agreement contained provisions that aligned with the principles of industrial fairness and equity. Consequently, the Commission approved the Water and General Works Enterprise Agreement 2019, deeming it to be fair and reasonable.

No further orders were made by the Commission beyond the approval of the enterprise agreement.

DAIS Vic Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established