Drill-Mac Pty Ltd T/A J & S Drilling
[2024] FWCA 4131
•26 NOVEMBER 2024
| [2024] FWCA 4131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Drill-Mac Pty Ltd T/A J & S Drilling
(AG2024/3774)
J&S DRILLING FIELD WORK ENTERPRISE AGREEMENT 2024
| Miscellaneous | |
| COMMISSIONER ALLISON | MELBOURNE, 26 NOVEMBER 2024 |
Application for approval of the J&S Drilling Field Work Enterprise Agreement 2024
Drill-Mac Pty Ltd T/A J & S Drilling (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 J&S Drilling Field Work Enterprise Agreement 2024 (the Agreement).
The Agreement does not contain a model consultation term, as required by s.205A(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Under s.205A(2), the workplace delegates’ rights term in Clause 31A of the Miscellaneous Award 2020 (the Award) is taken to be a term of the Agreement.
The Employer provided an undertaking that where there is an inconsistency between the Agreement and the National Employment Standards (NES), and NES provides a greater benefit, the NES provisions will apply. Clause 6.4 of the Agreement may be inconsistent with the NES, as it is silent in relation to the entitlement to compassionate leave when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. However, I am satisfied the NES undertaking ensures employees will receive the greater NES benefit.
Clause 3.6 of the Agreement does not provide that at the time of engagement of a part-time employee, the employer and the employee must agree in writing on a regular pattern of work including the hours to be worked and the starting and finishing times on each day, as required by clause 10.2 of the Award. The Agreement also does not provide that a part-time employee’s hours, once fixed, can be varied at any time by agreement. The Employer provided an undertaking to resolve this issue.
Clause 4.1.7 of the Agreement states that the Employer may choose to engage trainees in accordance with the Australian Traineeship Scheme, however the Agreement does not contain rates of pay for trainees. Rather, the Agreement provides for percentages to be applied to the hourly rates. The Employer provided an undertaking to resolve this issue.
Clause 4.3 of the Agreement states that an employee may be paid additional remuneration for undertaking specific responsibilities at the direction of the company. This appears to confer a discretion on the Employer about whether or not to pay allowances which are otherwise provided for in the Award. The Employer provided an undertaking to ensure an assessment will be made for each employee entitled to receive allowances under the Award to ensure they continue to be better off overall under the Agreement.
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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2024. The nominal expiry date of the Agreement is 2 December 2028.
COMMISSIONER
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Annexure A
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