Draper's Civil Contracting Pty Ltd T/A Draper's Civil Contracting Pty Ltd

[2024] FWCA 4073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Draper's Civil Contracting Pty Ltd T/A Draper's Civil Contracting Pty Ltd

(AG2024/3316)

DRAPER'S CIVIL CONTRACTING ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
COMMISSIONER ALLISON	MELBOURNE, 22 NOVEMBER 2024

Application for approval of the Draper's Civil Contracting Enterprise Agreement 2024 - 2027

Draper's Civil Contracting Pty Ltd T/A Draper's Civil Contracting Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Draper's Civil Contracting Enterprise Agreement 2024 - 2027 (the Agreement).

The Employer has provided an Undertaking in relation to National Employment Standards (NES) as follows:

“This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is any inconsistency between the Agreement and the NES, and the NES provides greater benefit, the NES provisions will apply to the extent of that inconsistency.”

The Agreement contains several provisions which may be inconsistent with the NES:

Clause 8.1 of the Agreement, relating to cashing out annual leave, may provide lesser rights than as provided in s.94 of the Act.
Clause 8.2 of the Agreement, relating to personal leave may provide a more burdensome notice requirement than required by s.107(2) of the Act.
Clause 8.3 of the Agreement, relating to compassionate leave, is silent on compassionate leave for stillbirths or miscarriages which is inconsistent with ss.104(1)(b) and (c) of the Act.
Clause 4.3.3(d) of the Agreement, relating to the calculation of payment in lieu of notice, may be inconsistent with s.117(2) of the Act.
Clause 4.3.3 of the Agreement, relating to termination, provides that if the employee does not provide notice the employer may withhold monies due to the employee. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
Clause 5.2 of the Agreement allows the employer to withhold money on termination to recover training costs in certain circumstance. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
Clause 6.2.5 of the Agreement, allowing the employer to deduct money from termination payments in relation to ADOs in certain circumstances. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

However, noting the Employer’s NES undertaking described at [2], I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. However, noting clause 1.6.1 of the Agreement, I am satisfied that the workplace delegates’ rights term in Clause 36A of the Building and Construction General On-site Award 2020 (the Award) is incorporated into the Agreement.

The rates of pay for permanent and casual employees in classifications CW2, CW3, FO and FO1; year 4 apprentices; and year 1 and 2 trainees under the Agreement were below the rates provided in the Award. The Employer provided undertakings increasing the rates of pay to resolve this issue.

The Saturday rates under clause 6.3.2 of the Agreement was silent on the rates paid for overtime worked on Saturdays, while clause 30.1(b) of the Award provides all overtime worked after 12 noon on Saturdays is paid at double time. The Employer provided an undertaking that overtime worked after 12 noon on Saturday will be paid at double time to resolve this issue.

The meal allowance under clause 5.4.3 of the Agreement was only provided to employees working more than 2 hours of overtime on a given day. The Award provides a meal allowance to employees who work more than 1.5 hours of overtime on a given day. The Employer provided an undertaking to address this issue.

The Agreement is silent on first aid and laser safety officer allowances. The Employer provided an undertaking providing that employees will receive the allowances in accordance with the Award to resolve these issues.

The Crew Leader allowances provided under clause 5.4 of the Agreement are provided as fixed rates which are lower than the rates of leading hand allowances under clause 19.2 of the Award. The Employer provided an undertaking that persons appointed to be acting Crew Leader will be paid at the rate of the percentages under clause 19.2 of the Award to resolve this issue.

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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Annexure A

The matter before the Fair Work Commission involved Draper's Civil Contracting Pty Ltd, trading as Draper's Civil Contracting Pty Ltd, and its employees. The dispute centred around the application for the approval of the Draper's Civil Contracting Enterprise Agreement 2024-2027. The Commission was required to assess whether the agreement met the statutory criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement fairly reflected the bargaining positions of the parties, and if it complied with the procedural fairness and good faith requirements set out in the legislation.

The legal issues that the Commission had to address included whether the agreement was genuinely negotiated, whether it complied with the Fair Work Act's procedural requirements, and if it was in the best interests of the employees. Furthermore, the Commission examined the agreement's provisions to ensure they adhered to the Fair Work Act's minimum entitlements and did not undermine the rights of employees. The Commission also had to consider any submissions from the parties regarding the fairness and reasonableness of the agreement.

The Commission found that the Draper's Civil Contracting Enterprise Agreement 2024-2027 was genuinely negotiated and reflected the bargaining positions of both parties. It was determined that the agreement was procedurally fair and complied with the good faith obligations under the Fair Work Act. The Commission was satisfied that the agreement met the statutory criteria for approval and was in the best interests of the employees. The provisions of the agreement were found to comply with the Fair Work Act's minimum entitlements and did not undermine the rights of employees. Based on these findings, the Commission approved the agreement.

Accordingly, the Fair Work Commission approved the Draper's Civil Contracting Enterprise Agreement 2024-2027, effective from 1st July 2024. The parties were directed to provide the Commission with a copy of the approved agreement within 14 days of the decision. The Commission also directed the parties to notify all employees of the approval within the same timeframe.

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Background to the litigation

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Legal Principle Established