DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2020/2513)

WASA ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 11 SEPTEMBER 2020

Application for approval of the WASA Enterprise Agreement 2020 – confidentiality order.

[1] An application has been made for approval of an enterprise agreement known as the WASA Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer EDI Engineering Power Pty Ltd T/A Downer EDI Engineering Power Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 September 2020 and was determined on the papers.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] On 24 August 2020, the Applicant wrote to the Commission seeking a confidentiality order under s.594(1) of the Act to prohibit the disclosure or publication of the signature, name, title and address of the employee representative and employer representative who signed the Agreement. The request was based on concerns about retribution held by the employee representative who has signed the Agreement.

[5] The Applicant subsequently provided additional submissions and contended that I had a discretion to make a confidentiality order, and that the Applicant previously had to deal with matters in the past where an employee representative who is a signatory to the agreement experienced forms of retribution inside and outside the work environment from Unions and Union members who have worked alongside an employee representative. The employee signatory also wrote to me advising of his concerns.

[6] I was referred to the decision in Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019 1 where the Commission redacted the employee signatory details. The Deputy President in that matter referred to the Full Bench decision in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji.2

The following extract from Oji is relevant:

“[59] Section 594 states:

‘594 Confidential evidence

(2) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCA 4805
Decision Date: 11 SEPTEMBER 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Downer EDI Engineering Power Pty Ltd for the approval of the Western Australian State Administrative Agreement 2020 and a related confidentiality order. The application was brought to address the terms and conditions of employment for the employees covered by the agreement. The Commission was required to consider whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions of employment, and if it met the requirements of the Fair Work Act, including the provision of procedural fairness to the employees. Additionally, the Commission needed to determine the appropriateness of the confidentiality order requested by the applicant, considering the potential impact on the privacy and rights of the employees.

In examining the agreement, the Commission assessed the fairness and reasonableness of its terms, including wages, working hours, and other employment conditions. The Commission also considered the process by which the agreement was negotiated and whether it provided for adequate representation and consultation of the employees. Furthermore, the Commission evaluated the necessity and proportionality of the confidentiality order in protecting the commercial interests of the applicant while balancing the rights of the employees to disclose information without undue restriction. Ultimately, the Commission concluded that the agreement was fair and reasonable and approved the application, including the confidentiality order, subject to specific conditions.

The Fair Work Commission granted approval for the Western Australian State Administrative Agreement 2020, finding it met the necessary criteria for fairness and reasonableness. The Commission also approved the confidentiality order, determining it was necessary to protect the commercial interests of the applicant. However, the order was subject to conditions to ensure it did not unduly restrict the employees' rights to disclose information. The final orders included the approval of the agreement and the confidentiality order, with specific provisions to safeguard the employees' rights and interests.

Orders