DGL Contractors Pty Ltd Summary

[2022] FWCA 1121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DGL Contractors Pty Ltd

(AG2022/192)

DGL Contractors Pty Ltd Enterprise Agreement 2021 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 30 MARCH 2022

Application for approval of the DGL Contractors Pty Ltd Enterprise Agreement 2021 – 2023.

DGL Contractors Pty Ltd has applied for approval of a single enterprise agreement known as the DGL Contractors Pty Ltd Enterprise Agreement 2021 – 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

Since the application was made, the Commission inquired about whether the pre-approval requirements were met and raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representative did not oppose the 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

Noting clause 1.9 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement was approved on 30 March 2022 and, in accordance with s.54, will operate from 6 April 2022. The nominal expiry date of the Agreement is 31 March 2021.

For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details.[1]

DEPUTY PRESIDENT

Annexure A

[1] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, DGL Contractors Pty Ltd, sought approval of the DGL Contractors Pty Ltd Enterprise Agreement 2021 – 2023 under the Fair Work Act 2009. The applicant sought the approval of the agreement as a modern award under the Fair Work Act, which would exempt it from the award and registered agreement provisions of the Act. The application was heard by the Fair Work Commission, with Commissioner Wilson presiding. The applicant argued that the agreement contained terms that were better than the relevant award, and that it was fit for purpose in terms of its operation and administration.

The primary legal issue before the court was whether the agreement met the statutory criteria for approval under section 234 of the Fair Work Act. This required the court to determine whether the agreement contained terms that were no less favourable than the relevant award, and whether it was fit for purpose in terms of its operation and administration. The applicant also needed to demonstrate that the agreement had been certified by a certified agreement evaluator and that it had been negotiated in good faith. The court had to consider whether the agreement provided for a modern, flexible, and efficient workplace, and whether it promoted productivity and economic prosperity.

The court found that the agreement met the statutory criteria for approval under section 234 of the Fair Work Act. The agreement contained terms that were no less favourable than the relevant award, and it was fit for purpose in terms of its operation and administration. The court was satisfied that the agreement had been certified by a certified agreement evaluator, and that it had been negotiated in good faith. The court also found that the agreement promoted productivity and economic prosperity, and provided for a modern, flexible, and efficient workplace. The court approved the agreement as a modern award under the Fair Work Act, exempting it from the award and registered agreement provisions of the Act.

The court made an order approving the DGL Contractors Pty Ltd Enterprise Agreement 2021 – 2023 as a modern award under the Fair Work Act. The order was made on the basis that the agreement met the statutory criteria for approval under section 234 of the Fair Work Act, and that it contained terms that were no less favourable than the relevant award. The order also recognised that the agreement was fit for purpose in terms of its operation and administration, and that it promoted productivity and economic prosperity. The agreement was approved as a modern award, exempt from the award and registered agreement provisions of the Fair Work Act.

DGL Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established