Daromin Engineering Pty Ltd T/A Daracon Group

[2021] FWCA 641

[2021] FWCA 641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Daromin Engineering Pty Ltd T/A Daracon Group
(AG2020/4028)

DARACON GROUP FLEET SERVICE AND REPAIR ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 9 FEBRUARY 2021

Application for approval of the Daracon Group Fleet Service and Repair Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Daracon Group Fleet Service and Repair Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Daromin Engineering Pty Ltd T/A Daracon Group (the Applicant). 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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] On 21 January 2021, my chambers wrote to the Applicant noting that the Notice of Employee Representational Rights (NOERR) states that apprentices are excluded from coverage of the Agreement, however, Appendix A of the Agreement provides rates of pay for apprentices.

[5] In response, the Applicant submitted that at the beginning of bargaining the Applicant made a decision to exclude apprentices from coverage of the Agreement as it had no intention of engaging direct employed apprentices. However when bargaining re-commenced after it was put on hold due to the COVID-19 Pandemic, as an existing employee transferred into the fleet business as an apprentice, the Applicant decided to include the apprentice under the Agreement. The reason for this was for the apprentice to be covered by the Agreement rather than the relevant award. The Agreement offers substantially better terms, and the terms and conditions would apply consistently to the fleet workforce.

[6] Noting that the apprentice was involved in the process of bargaining and cast a valid vote in relation to the Agreement, and the change to the Agreement was discussed with employees prior to the vote, I am satisfied that the exclusion of apprentices in the NOERR can be treated as a minor procedural or technical error that was not likely to disadvantage employees, and that the Agreement has been genuinely agreed to for the purposes of section 188(2) of the Act.

[7] The Agreement lodged contained an error at Appendix A. On 2 February 2021, the Applicant filed an amended page 21 of the Agreement, correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[8] The Agreement is approved and in accordance with s.54, will operate from 16 February 2021. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

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Annexure A