Denrith Pty Limited T/A Divalls Bulk Haulage and Earthmoving (registered) Summary

[2023] FWCA 1629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Denrith Pty Limited T/A Divalls Bulk Haulage and Earthmoving (registered)

(AG2023/1400)

DENRITH CIVIL CONSTRUCTION ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 5 JUNE 2023

Application for approval of the Denrith Civil Construction Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Denrith Civil Construction Enterprise Agreement 2022(the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Denrith Pty Limited T/A Divalls Bulk Haul and Earthmoving (Registered) (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 4 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Denrith Pty Limited T/A Divalls Bulk Haulage and Earthmoving applied for the approval of the Denrith Civil Construction Enterprise Agreement 2022. The application was made under section 230 of the Fair Work Act 2009. The application arose from negotiations between the applicant and the Construction, Forestry, Maritime, Mining and Energy Union. The union did not object to the approval of the agreement, however, it did raise concerns about the operation of the agreement's pay rates and the process for resolving disputes. The commission was required to determine whether the agreement should be approved, taking into account the views of the union and the provisions of the Fair Work Act.

The primary legal issue before the commission was whether the agreement met the statutory requirements for approval. This included assessing whether the agreement contained the prescribed minimum terms and conditions, and whether it was made in good faith and without coercion. The commission also considered whether the agreement provided for an appropriate dispute resolution process, and whether the pay rates were fair and reasonable. The union's concerns about the operation of the agreement's pay rates and dispute resolution process were central to the commission's consideration of these issues.

After considering the evidence and submissions from both parties, the commission was satisfied that the agreement met the statutory requirements for approval. The commission found that the agreement contained the prescribed minimum terms and conditions, and that it was made in good faith and without coercion. The commission also found that the agreement provided for an appropriate dispute resolution process, and that the pay rates were fair and reasonable. The commission noted that the union had not objected to the approval of the agreement, and that the concerns it had raised were relatively minor. The commission concluded that the agreement should be approved, and made an order to that effect.

The commission's order approving the agreement was subject to certain conditions, including a requirement that the applicant provide the union with certain information about the agreement's operation. The union was also given the right to apply to the commission for a review of the agreement's operation if it believed that the agreement was not being properly implemented. The commission's decision provides guidance on the factors it will consider when approving enterprise agreements, and the importance of ensuring that agreements meet the statutory requirements for approval.

Denrith Pty Limited T/A Divalls Bulk Haulage and Earthmoving (registered)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established