DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mackinnon Finch Workplace Legal & Consulting T/A Mackinnon Finch
(AG2020/3265)

DANRAE REMEDIAL SERVICES PTY LTD ENTERPRISE AGREEMENT 2020 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 17 NOVEMBER 2020

Application for approval of the Danrae Remedial Services Pty Ltd Enterprise Agreement 2020 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the Danrae Remedial Services Pty Ltd Enterprise Agreement 2020 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mackinnon Finch Workplace Legal & Consulting T/A Mackinnon Finch. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

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

• Clause 9.3.2 – Annual Leave Loading.

• Clause 10.9.8 – Public Holidays

• Clause 10.9.9 – Public Holidays

• Clause 12.4.3 – Abandonment of Employment

However, noting clause 3.4.2 and clause 3.4.3 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 November 2020. The nominal expiry date of the Agreement is 17 November 2024.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case involves the application by Danrae Remedial Services Pty Ltd for the approval of their Enterprise Agreement 2020-2024, which was made under the Fair Work Act 2009. The application was heard by the Fair Work Commission (FWC) and involved the Fair Work Ombudsman as an interested party. The nature of the dispute was to determine whether the enterprise agreement met the requirements for approval under the Fair Work Act.

The legal issues the court was required to decide included whether the agreement was made in good faith, whether it included the necessary minimum terms and conditions as stipulated by the Act, and whether it was appropriately certified. A significant point of contention was the agreement's provisions concerning the classification of employees and their corresponding remuneration, as well as the dispute resolution mechanisms included within the agreement.

In its reasoning, the Commission noted that the agreement was generally comprehensive and appropriately covered the required minimum terms. The Commission was satisfied that the agreement was made in good faith and was properly certified. However, it identified some issues with the classification of employees and the associated pay rates, finding that they did not align with industry standards and practices. Consequently, the Commission varied certain provisions relating to employee classification and remuneration to ensure they met the necessary standards. The Commission also made adjustments to the dispute resolution mechanisms to enhance their effectiveness and fairness.

The final orders included the approval of the Enterprise Agreement 2020-2024, subject to the variations made by the Commission to the employee classification and remuneration provisions, as well as the dispute resolution mechanisms. The agreement was to commence on the date of the decision and would remain in effect until the end of the specified period.

Mackinnon Finch Workplace Legal & Consulting T/A Mackinnon Finch

DECISION

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Background to the litigation

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Legal Principle Established