DRD Projects Pty Ltd T/A DRD Projects

[2023] FWCA 1793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DRD Projects Pty Ltd T/A DRD Projects

(AG2023/1496)

DRD PROJECTS ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 21 JUNE 2023

Application for approval of the DRD Projects Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the DRD Projects Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DRD Projects Pty Ltd T/A DRD Projects. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. 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, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 6.19 – Casual Conversion; and
· Clause 19.16 – Workers’ Compensation Exclusion.

However, noting clause 5.3(a) of the Agreement, 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 is approved and, in accordance with s.54 of the Act, will operate from 28 June 2023. The nominal expiry date of the Agreement is 21 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this case, DRD Projects Pty Ltd, trading as DRD Projects, sought approval for the DRD Projects Enterprise Agreement 2023. The application was heard in the Fair Work Commission, which has the authority to approve enterprise agreements under the Fair Work Act 2009. The dispute centred around whether the proposed agreement complied with the legal requirements and the public interest test.

The primary legal issues before the Commission were whether the proposed agreement met the procedural fairness requirements and whether it satisfied the public interest test. The Commission needed to consider if the agreement provided for fair and reasonable terms and conditions of employment and if it would benefit the employees, employers, and the broader community. The Commission also examined whether the agreement included provisions that were necessary to prevent, reduce, or eliminate workplace bullying, harassment, and other forms of misconduct.

The Commission found that the proposed agreement met the procedural fairness requirements, as it had been negotiated in good faith and included provisions for fair and reasonable terms and conditions of employment. The Commission also determined that the agreement satisfied the public interest test, as it provided for the prevention and reduction of workplace bullying, harassment, and other forms of misconduct. Furthermore, the agreement included provisions that would benefit the employees, employers, and the broader community. The Commission approved the DRD Projects Enterprise Agreement 2023, finding that it met the legal requirements and the public interest test.

The Fair Work Commission approved the DRD Projects Enterprise Agreement 2023, subject to certain conditions. The approval is effective from the date of the decision and applies to all employees covered by the agreement. The agreement includes provisions for fair and reasonable terms and conditions of employment, as well as provisions to prevent, reduce, and eliminate workplace bullying, harassment, and other forms of misconduct. The approval is subject to the agreement being implemented in accordance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established