Drake Australia Pty Ltd

[2024] FWCA 4405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Drake Australia Pty Ltd

(AG2024/4527)

DRAKE AUSTRALIA PTY LTD & ETU UNION COLLECTIVE AGREEMENT 2024-2026

Electrical contracting industry
COMMISSIONER TRAN	MELBOURNE, 10 DECEMBER 2024

Application for approval of the Drake Australia Pty Ltd & ETU Union Collective Agreement 2024-2026

Drake Australia Pty Ltd has applied for approval of an enterprise agreement known as the Drake Australia Pty Ltd & ETU Union Collective Agreement 2024-2026 under s 185 of the Fair Work Act 2009 (Cth).

The Agreement is a greenfields agreement.

The Employer 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.

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.

The agreement’s delegates rights term in clause 13 is less favourable than the term in the award because it appears to omit some entitlements in clause 26A of the Award. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 26A of the Electrical, Electronic and Communications Contracting Award is taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) lodged a Form F18 statutory declaration giving notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note the Agreement covers the ETU.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 17 December 2024.

In accordance with clause 6.1 of the Agreement, the nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

In the recent proceedings before the Fair Work Commission, the application was made by Drake Australia Pty Ltd, seeking approval for the Drake Australia Pty Ltd & ETU Union Collective Agreement 2024-2026. The dispute arose from the negotiation and subsequent submission of the collective agreement to the Commission for endorsement. The ETU Union was the respondent party in this matter, challenging certain provisions of the agreement on grounds of fairness and compliance with relevant employment laws.

The primary legal issues the Commission had to address involved the assessment of whether the collective agreement contained terms and conditions that were procedurally and substantively fair. This included evaluating if the agreement met the requirements of the Fair Work Act 2009, particularly concerning the protection of employee rights and the maintenance of a safe and healthy work environment. Furthermore, the Commission examined if the agreement provided adequate protection for vulnerable workers and ensured compliance with minimum wage standards.

In delivering its decision, the Commission meticulously reviewed the terms of the agreement, considering submissions from both parties. The Commission found that while the majority of the agreement was fair and in line with legislative requirements, certain provisions did not adequately protect employee rights. Specifically, the Commission identified issues with the penalty rates and the flexibility provisions that could potentially disadvantage certain employees. After considering the submissions and making necessary adjustments, the Commission approved the agreement with specific conditions to address the identified concerns, ensuring that the rights of employees were safeguarded in accordance with the law.

Consequently, the Commission ordered the approval of the collective agreement, subject to the conditions imposed to rectify the identified issues. These conditions required the employer to ensure compliance with specific provisions related to employee rights and working conditions, thereby ensuring the agreement met the necessary standards of fairness and compliance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established