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

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Daromin Engineering Pty Ltd trading as Daracon Group, sought approval of the Daracon Group Fleet Service and Repair Enterprise Agreement 2020. The applicants contended that the agreement was made in good faith and that it provided for the payment of wages and conditions of employment that were no less favourable than the minimum standards set by the relevant industrial instruments. The applicants argued that the agreement provided for a fair and reasonable balance of benefits and burdens between the parties and that it was consistent with the principles of the Fair Work Act 2009 (Cth). The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contested the application, arguing that the agreement did not provide for fair and reasonable terms and conditions and that it did not adequately protect the rights and interests of the employees.

The primary legal issue before the court was whether the agreement met the requirements for approval under section 232 of the Fair Work Act 2009 (Cth). The court considered whether the agreement was made in good faith, whether it provided for the payment of wages and conditions of employment that were no less favourable than the minimum standards, and whether it provided for a fair and reasonable balance of benefits and burdens between the parties. The court also examined whether the agreement was consistent with the principles of the Fair Work Act and whether it adequately protected the rights and interests of the employees.

After considering the evidence and submissions from both parties, the court found that the agreement met the requirements for approval under the Fair Work Act. The court found that the agreement was made in good faith and that it provided for the payment of wages and conditions of employment that were no less favourable than the minimum standards. The court also found that the agreement provided for a fair and reasonable balance of benefits and burdens between the parties and that it was consistent with the principles of the Fair Work Act. The court was satisfied that the agreement adequately protected the rights and interests of the employees and that it was in the best interests of the employees and the applicants.

The court approved the Daracon Group Fleet Service and Repair Enterprise Agreement 2020 and made an order to that effect. The order was made on the condition that the agreement be registered with the Fair Work Commission. The court also ordered that the applicants pay the costs of the application.

Daromin Engineering Pty Ltd T/A Daracon Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established