DAIS Vic Pty Ltd

[2019] FWCA 6182

[2019] FWCA 6182

FAIR WORK COMMISSION

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

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Annexure A