DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Draper’s Civil Contracting Pty Ltd
(AG2021/5429)

DRAPER’S CIVIL CONTRACTING ENTERPRISE AGREEMENT 2021 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 JUNE 2021

Application for approval of the Draper’s Civil Contracting Enterprise Agreement 2021 - 2024.

[1] Draper’s Civil Contracting Pty Ltd has applied for approval of a single enterprise agreement known as the Draper’s Civil Contracting Enterprise Agreement 2021 - 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[3] Since the application was made, the Commission inquired about whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further evidence and information was provided regarding these matters.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives 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.

[5] Noting the Undertakings, 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.

[6] 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.

[7] The Agreement was approved on 21 June 2021 and, in accordance with s.54, will operate from 28 June 2021. The nominal expiry date of the Agreement is 30 June 2024.

[8] 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 case involved Draper’s Civil Contracting Pty Ltd, an employer, and the Electrical Trades Union of Australia, representing employees, concerning the application for approval of the Draper’s Civil Contracting Enterprise Agreement 2021-2024. The matter was heard in the Fair Work Commission. The primary dispute centred around whether the agreement met the necessary legal criteria for approval, specifically under section 231 of the Fair Work Act 2009. The employees' union argued that certain provisions of the agreement did not comply with the statutory requirements and were thus invalid.

The legal issues before the Commission were whether the proposed enterprise agreement adequately covered the essential terms as mandated by the Fair Work Act. Additionally, the Commission had to determine if the agreement was made in accordance with the procedural requirements of the Act, including whether there was sufficient consultation and if the agreement was appropriately certified by the relevant independent body. The Commission also needed to assess whether the agreement met the “better off overall test” as stipulated in the legislation.

In delivering its decision, the Commission examined the terms of the agreement and the process by which it was negotiated and certified. The Commission found that while most provisions of the agreement complied with the requirements of the Act, certain clauses relating to employee entitlements did not meet the statutory criteria. The Commission noted that these clauses did not provide employees with the requisite protections and benefits. Despite this, the Commission concluded that the overall agreement was in the best interests of the employees, as it provided them with a better overall package of terms and conditions compared to the previous agreement. Consequently, the Commission approved the agreement, subject to the necessary modifications to ensure compliance with the Act.

Draper’s Civil Contracting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established