DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

NL Consulting Services Pty Ltd T/A Workplace Solutions
(AG2020/599)

DAVCO ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT LAKE	BRISBANE, 22 APRIL 2020

Application for approval of the Davco Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the Davco Enterprise Agreement 2020 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Act). It has been made by NL Consulting Services Pty Ltd T/A Workplace Solutions (the Applicant) on behalf of Davco Scaffolding Pty Ltd T/A Davco Scaffolding (the Employer). The Agreement is a single enterprise agreement.

[2] Mr Paul Dunbar, Industrial Relations Officer of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), advised the Commission on 17 March 2020 that in accordance with the Full Bench decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd[2016] FWCFB 8413, the CFMMEU had a material interest in the matter and requested copies of documents so that the CFMMEU could make submissions regarding the Agreement. Copies of the documents were provided to the CFMMEU.

[3] The CFMMEU identified concerns with the Agreement in separate correspondence to my Chambers on 8 April 2020. The Applicant provided responses to concerns raised by both the Commission and the CFMMEU on 9 April 2020 which were sent to my Chambers and to the CFMMEU.

[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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.

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

● Clause 25 – Personal leave;

● Clause 25(g) – Personal leave notice;

● Clause 10.5(c) – Abandonment of employment

● Clause 11 – Redundancy

[6] However, noting the NES precedence clause at clause 5 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.

[7] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188, as are relevant to this application for approval, have been met.

[8] Accordingly, the Agreement is approved and, in accordance with s 54 of the Act, will operate from 29 April 2020. The nominal expiry date of the Agreement is 22 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A.

CaseChat Overview and Summary

NL Consulting Services Pty Ltd, trading as Workplace Solutions, applied to the Fair Work Commission for approval of the Davco Enterprise Agreement 2020. The agreement was intended to regulate the employment terms and conditions of employees within the Davco enterprise, and the dispute centred on the appropriateness and compliance of the agreement with the Fair Work Act 2009. The Fair Work Commission was tasked with assessing whether the agreement met the necessary standards for approval, including ensuring it provided for fair and reasonable terms and conditions of employment.

The legal issues the court needed to address involved whether the agreement contained all the mandated terms as per the Fair Work Act, and whether it adhered to the requirements for procedural fairness in its creation. Additionally, the court had to consider if the agreement complied with the "better off overall test" which ensures that employees are no worse off financially under the new agreement compared to their previous conditions. Furthermore, the court examined whether the agreement contained adequate provisions for dispute resolution and whether it was appropriately negotiated.

The Fair Work Commission concluded that the Davco Enterprise Agreement 2020 did indeed meet the statutory requirements for approval. The agreement was found to include all the mandated terms, and the process leading to its creation was deemed procedurally fair. The court also determined that the agreement satisfied the better off overall test and contained sufficient provisions for dispute resolution. Consequently, the application for approval was successful, and the agreement was approved as compliant with the Fair Work Act.

No further orders were necessary as the primary objective of the application was the approval of the enterprise agreement, which had been granted by the Fair Work Commission.

NL Consulting Services Pty Ltd T/A Workplace Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established