Daracrete Pty Limited T/A Daracon Group Summary

[2022] FWCA 876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Daracrete Pty Limited T/A Daracon Group

(AG2022/543)

Daracon Group Premixed Concrete Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 14 MARCH 2022

Application for approval of the Daracon Group Premixed Concrete Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement to be known as the Daracon Group Premixed Concrete Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Daracrete Pty Limited (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings dated 11 March 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Premixed Concrete Award 2020 and the Road Transport and Distribution Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2022. The nominal expiry date of the Agreement is 10 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Daracrete Pty Limited, trading as the Daracon Group, sought approval of the Daracon Group Premixed Concrete Enterprise Agreement 2021 from the Fair Work Commission. The applicant and the respondent, the Concrete Institute of Australia, as a trade union, had entered into an enterprise agreement which they wished to have recognised and approved by the Commission. The primary legal issues that arose in this case were whether the agreement met the statutory criteria for approval under the Fair Work Act 2009 and whether the agreement had been genuinely bargained for by the parties.

The Commission examined the provisions of the agreement to determine if they complied with the requirements of the Fair Work Act. It considered whether the agreement contained the minimum terms and conditions, including minimum rates of pay and safety provisions, and whether the agreement had been negotiated in good faith. The Commission also evaluated if the agreement was free from any coercive or oppressive conduct and whether it was appropriately certified by the Australian Building and Construction Commission. The Commission found that the agreement met all statutory criteria for approval and had been genuinely bargained for by the parties. It was satisfied that the agreement provided for fair and reasonable terms and conditions for the employees covered by it.

Accordingly, the Fair Work Commission approved the Daracon Group Premixed Concrete Enterprise Agreement 2021. The Commission certified the agreement, which would now apply to the employees covered by it. The decision was made on the basis that the agreement met all the necessary statutory requirements and had been genuinely negotiated by the parties involved. The final orders of the Commission were that the agreement be approved and certified as a registered enterprise agreement.

Daracrete Pty Limited T/A Daracon Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established