Pipeline Drillers Group Pty Ltd T/A Pipeline Drillers Group

[2021] FWCA 980

[2021] FWCA 980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pipeline Drillers Group Pty Ltd T/A Pipeline Drillers Group
(AG2021/126)

PIPELINE DRILLERS GROUP ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2021

Application for approval of the Pipeline Drillers Group Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Pipeline Drillers Group Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Pipeline Drillers Group Pty Ltd T/A Pipeline Drillers Group. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Question 26 on the Form F17 indicates that 16 employees were covered by the Agreement at the time of the vote, but that “One new employee commenced at PDG after the EBA renewal process was initiated, therefore was not included in the vote.” The Employer made submissions that the employee commenced employment with the Applicant on 13 December 2021. The date that voting commenced for the Agreement was 11 January 2021. The 7-day access period therefore started on the first full day after 3 January 2021. As such, the employee was covered by the Agreement at the time of the vote. Nonetheless, the remaining 15 employees who were covered by the Agreement at the time of the vote cast a valid vote to approve the Agreement. In the circumstances, and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, I am satisfied that this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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

•  Clause 14.8 – Flexible work arrangements; and

•  Clause 24.2(h) – Sick, carers’ and compassionate leave.

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2021. The nominal expiry date of the Agreement is 22 February 2025.

COMMISSIONER

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Annexure A

 1   [2019] FWCFB 318.