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Daracon Engineering Pty Ltd T/A Daracon

Daracon Engineering Pty Ltd T/A Daracon

Case [2019] FWCA 3842 4 June 2019

Collective Bargaining

Enterprise Agreement

Approval of Agreement

Employment & Labour Law

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[2019] FWCA 3842

FAIR WORK COMMISSION

DECISION

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

Daracon Engineering Pty Ltd T/A Daracon
(AG2018/4959)

DARACON GROUP CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 4 JUNE 2019

Application for approval of the Daracon Group Civil Construction Enterprise Agreement 2018.

[1] An application has been made for the approval of an enterprise agreement known as the Daracon Group Civil Construction Enterprise Agreement 2018 (the ‘Agreement’). The application was made by Daracon Engineering Pty Ltd (the ‘Applicant’) pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’). The Agreement is a single-enterprise agreement.

[2] The Australian Workers’ Union – NSW Branch (the ‘AWU’) and the Construction, Forestry, Maritime, Mining and Energy Union NSW – Construction and General Division (the ‘CFMMEU’) were union bargaining representatives involved in the Agreement making process.

[3] The AWU and the CFMMEU raised certain matters regarding the BOOT, and whether the Agreement satisfied that test. Those issues were addressed by the parties in correspondence and submissions directed firstly to the Chambers of Deputy President Gostencnik, who had carriage of the application, and after reallocation on 7 March, 2019, to my Chambers.

[4] The BOOT issues were resolved with the provision of written undertakings from the Applicant dated 26 February, 2019, and 12 March, 2019 respectively. Copies of the undertakings are attached to this decision and marked ‘Annexure A’ and ‘Annexure B.’ I note that the undertakings are taken to be terms of the Agreement. I am therefore satisfied that the relevant requirements of ss.186, 187, 188 and 190 of the Act concerning this application for approval have been met.

The Outstanding Issue

[5] Oneissue remains outstanding for determination in theapplication, and that issue is only advanced by the CFMMEU. That issue involves whether the Fair Work Commission (the ‘Commission’) can, and should, amend the Agreement pursuant to s.586(a) of the Act by removing reference to Daracon Contractors Pty Ltd from Clause 2.1 of the Agreement.

[6] The Applicant filed a Form F16 and a Form F17 in support of the application on 3 September, 2018. The Form F16 listed the Applicant as ‘Daracon Engineering Pty Ltd,’ and the other employers covered by the Agreement as ‘Daromin Engineering Pty Ltd,’ ‘Paramount Landscaping Pty Ltd,’ and ‘Daracon Contractors Pty Ltd.’

[7] In the Form F17, the Applicant, in response to Question 1.1 – ‘What is the name of the employer?’ named ‘Daracon Engineering Pty Ltd,’ ‘Daromin Engineering Pty Ltd,’ ‘Paramount Landscaping Pty Ltd’ and ‘Daracon Contractors Pty Ltd’ as the legal name, and ‘Daracon Group’ as the trading name for those entities.

[8] Clause 2.1 of the Agreement provides: -

‘Subject to clause 2.2, this Agreement covers Daracon Contractors Pty Ltd, Daracon Engineering Pty Ltd, Daromin Engineering Pty Ltd, and Paramount Landscaping Pty Ltd (‘the Company’) and employees engaged as on site Civil Construction Workers in the classifications.’

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daracon Engineering Pty Ltd T/A Daracon

Details

AGLC: Daracon Engineering Pty Ltd T/A Daracon [2019] FWCA 3842
Case: [2019] FWCA 3842
Decision Date: 4 JUNE 2019

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Daracon Group Civil Construction Enterprise Agreement 2018. The applicant, Daracon Engineering Pty Ltd, trading as Daracon, sought to have the agreement approved as a modern award. The dispute centred around the terms of the proposed agreement, which was intended to govern the employment conditions of certain employees within the civil construction industry.

The primary legal issues the court needed to address were whether the agreement complied with the requirements set out in the Fair Work Act 2009 and whether it provided appropriate safeguards for the employees. Specifically, the court had to examine if the agreement met the criteria for a simple, clear, and easy-to-understand document, as well as if it provided fair and reasonable terms and conditions of employment.

The Fair Work Commission found that the Daracon Group Civil Construction Enterprise Agreement 2018 met the necessary requirements. The agreement was deemed to be sufficiently clear and simple, ensuring that the employees could easily understand their rights and obligations. Furthermore, the court considered the agreement to provide fair and reasonable terms and conditions of employment. Consequently, the application for approval of the agreement was successful, and the agreement was registered as a modern award.

No specific final orders were mentioned in the text.

Orders