Daromin Engineering Pty Limited T/A Daracon Group

[2022] FWCA 1042

The attached document replaces the document previously issued with the above code on 24 March 2022.

Paragraph [6] has been replaced in its entirety to correct typographical errors.

Associate to Deputy President Easton.

Dated 24 March 2022.

[2022] FWCA 1042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Daromin Engineering Pty Limited T/A Daracon Group

(AG2022/695)

Daracon Group Quarries Enterprise Agreement 2021

Quarrying industry
DEPUTY PRESIDENT EASTON	SYDNEY, 24 MARCH 2022

Application for the approval of Daracon Group Quarries Enterprise Agreement 2021.

Daromin Engineering Pty Limited T/A Daracon Group (the Employer) has made an application for the approval of the Daracon Group Quarries Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clauses 11.2 and 11.4 – Termination of Employment (Notice by Employee; Serious Misconduct)
- Clause 12.3 – Redundancy (Alternative Position)
- Clauses 25.5.2 and 25.10 – Personal/Carer’s Leave (Payment; Compassionate Leave)
- Clause 27.3 – Public Holidays (Alternative Day)

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the AWU and the CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 March 2022. The nominal expiry date of the Agreement is 17 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Daromin Engineering Pty Limited, trading as Daracon Group, applied to the Fair Work Commission for the approval of the Daracon Group Quarries Enterprise Agreement 2021. The dispute centred around whether the agreement met the necessary standards and requirements for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with examining the provisions of the agreement, ensuring that it complied with the relevant legislative framework and that it was fair and reasonable in its terms and conditions.

The primary legal issues before the Commission were whether the agreement provided for appropriate minimum wages and conditions, including provisions for annual leave, public holidays, and overtime. Furthermore, the Commission needed to assess if the agreement included necessary dispute resolution mechanisms and whether the agreement had been genuinely negotiated between the employer and the employees' representatives. The fairness of the agreement, including whether it provided for adequate employee protections and benefits, was also scrutinized.

After considering the submissions from both parties and the relevant legislative requirements, the Commission found that the Daracon Group Quarries Enterprise Agreement 2021 met the necessary standards for approval. The agreement was deemed to provide for fair and reasonable terms and conditions, including appropriate minimum wages, leave provisions, and dispute resolution mechanisms. Consequently, the Commission approved the agreement, recognising it as a lawful and fair enterprise agreement under the Fair Work Act 2009.

The Fair Work Commission approved the Daracon Group Quarries Enterprise Agreement 2021, thereby setting the terms and conditions of employment for the relevant employees. This decision ensures that the agreement will be legally binding and enforceable, providing a framework for industrial relations within the Daracon Group.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established