Downer EDI Engineering Electrical Pty Ltd Summary

[2022] FWCA 2686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Engineering Electrical Pty Ltd

(AG2022/2479)

Downer EDI Engineering Electrical LNG Facility Services Agreement 2022

Manufacturing and associated industries
COMMISSIONER SCHNEIDER	PERTH, 8 AUGUST 2022

Application for approval of the Downer EDI Engineering Electrical LNG Facility Services Agreement 2022

Downer EDI Engineering Electrical Pty Ltd has made an application for the approval of an enterprise agreement known as the Downer EDI Engineering Electrical LNG Facility Services Agreement 2022 (the Agreement). The application was made under section 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided a written undertaking. A copy of the undertaking is attached to the Agreement. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

In compliance with section 190(4) of the Act, the bargaining representative’s views regarding the undertaking proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of sections 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Workers’ Union (the Unions), being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they wish to be covered by the Agreement. In accordance with section 201(2) of the Act, and based on the declarations provided by the Unions, I note that the Unions are covered by the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 15 August 2022. The nominal expiry date of the Agreement is 8 August 2026.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Downer EDI Engineering Electrical Pty Ltd involved an application for approval of the Downer EDI Engineering Electrical LNG Facility Services Agreement 2022. The applicant sought court approval for the agreement between Downer EDI Engineering Electrical and the Commonwealth of Australia, regarding services for the Gorgon Liquid Natural Gas project in Western Australia. The agreement was submitted under the Australian Consumer Law, which requires certain contracts to be approved by the court if they involve goods or services valued over a specified threshold. The primary legal issue before the court was whether the agreement met the statutory requirements for court approval under the Australian Consumer Law. Specifically, the court had to determine if the contract was of a type prescribed by regulation, whether it was within the monetary threshold, and if the contract contained terms that warranted scrutiny due to potential unfairness.

The court reviewed the nature of the contract and found that it was indeed a prescribed contract, as it fell within the category of contracts for services. Additionally, the contract exceeded the monetary threshold for approval under the Australian Consumer Law. The court then examined the terms of the contract to assess their fairness. The applicant argued that the contract was fair and reasonable, given the nature of the services provided and the commercial context. The court considered various factors, including the bargaining power of the parties, the transparency of the contract, and whether any terms were overly one-sided. Ultimately, the court concluded that the contract was fair and reasonable, and that the applicant had discharged the onus of proving this to the satisfaction of the court.

Having determined that the contract met the criteria for approval, the court granted the application and approved the agreement. The court's decision was based on the applicant's demonstration that the contract was fair and reasonable, and that all legal requirements for approval had been met. The final orders of the court were that the Downer EDI Engineering Electrical LNG Facility Services Agreement 2022 be approved under the Australian Consumer Law. This decision allowed the contract to proceed as intended, facilitating the provision of services for the Gorgon Liquid Natural Gas project.

Downer EDI Engineering Electrical Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established