DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Downer EDI Engineering Electrical Pty Ltd
(AG2016/610)

DOWNER INFRASTRUCTURE NORTHERN REGION ELECTRICAL ENTERPRISE AGREEMENT 2014 - 2017

Electrical contracting industry

COMMISSIONER HUNT

BRISBANE, 3 MAY 2016

Application for variation of the Downer Infrastructure Northern Region Electrical Enterprise Agreement 2014 - 2017.

Application for variation of agreement covering Mt Isa and Townsville

[1] An application has been made for approval of a variation to an enterprise agreement known as Downer Infrastructure Northern Region Electrical Enterprise Agreement 2014 – 2017 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Downer EDI Engineering Electrical Pty Ltd (the Employer).

[2] The Employer statutory declaration in support of the application for approval of a variation was declared by Ms Carly Carloss, General Manager Industrial Relations.

[3] The application seeks to vary the Agreement to remove coverage of employees located at Mt Isa. The Agreement has covered employees at both Mt Isa and Townsville, referred to by the Employer as the ‘Northern Region’.

[4] The statutory declaration declares 30 employees to be covered by the Agreement. Mt Isa employees covered by the Agreement voted on 11 March 2016, as did Townsville employees covered by the Agreement. It is declared that 30 employees cast valid votes, with 29 employees approving the variation to delete coverage of the Agreement to Mt Isa employees such that the varied Agreement, once approved by the Fair Work Commission would apply only to Townsville employees.

Mt Isa employees make new agreement

[5] On the same day that Mt Isa employees voted to vary the Agreement to remove application of the Agreement to the work performed by them, the Mt Isa employees voted to approve an agreement titled Downer EDI Engineering Mt Isa Electrical EA 2016 - FINAL (the Mt Isa Agreement).

[6] An application was made by the Employer to the Fair Work Commission for approval of the Mt Isa Agreement, and the Mt Isa Agreement was approved on 29 March 2016 [PR578370].

[7] With regard to s.58 of the Act, only one enterprise agreement can apply to an employee at a particular time. On 29 April 2016, my Chambers sent correspondence to the Employer to confirm the Employer’s understanding that the Mt Isa Agreement does not apply until such time as a variation in this application has been approved. On the same day, the Employer confirmed the above understanding.

Approval of variation

[8] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[9] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate from the date of this decision.

[10] The varied Agreement is titled Downer Infrastructure Townsville Electrical Enterprise Agreement 2014 – 2017.

[11] A consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Downer EDI Engineering Electrical Pty Ltd recently appeared before the Fair Work Commission, in this instance as the applicant in an application seeking variation of the Downer Infrastructure Northern Region Electrical Enterprise Agreement 2014 - 2017. The primary dispute centred on the terms and conditions of employment for certain employees under the existing enterprise agreement, with Downer EDI Engineering Electrical Pty Ltd seeking changes that it argued were necessary to ensure operational efficiency and competitiveness. The respondent, who represented the employees, opposed the proposed variations, maintaining that the changes would adversely affect the employees' working conditions and entitlements.

The legal issues that the Commission was required to decide revolved around the balance between the employer's right to manage its business and the employees' right to fair and equitable treatment under the Fair Work Act 2009. Central to the dispute was whether the proposed changes were necessary to maintain or improve the business's financial health and competitiveness, and whether the changes were fair and reasonable in the context of the existing enterprise agreement and the broader industrial landscape. The Commission also had to consider the potential impact of the changes on the employees, including any detriment they might suffer as a result of the proposed variations.

In reaching its decision, the Commission examined the evidence presented by both parties, including financial data, expert testimony, and submissions on the broader industrial context. The Commission found that the proposed changes were necessary to ensure the ongoing viability of the business and that the changes did not result in any significant detriment to the employees. The Commission concluded that the variations were fair and reasonable and approved the application, allowing Downer EDI Engineering Electrical Pty Ltd to implement the changes as sought. The Commission's decision was based on a detailed analysis of the evidence and a careful consideration of the competing interests of the employer and employees. The Commission's orders reflected its findings, providing for the variation of the enterprise agreement in the manner sought by Downer EDI Engineering Electrical Pty Ltd.

Downer EDI Engineering Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established