DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2019/2987)

DOWNER EDI ENGINEERING POWER PTY LTD SOUTH WEST MAINTENANCE SERVICES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 4 DECEMBER 2019

Application for approval of the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). The application has been made by Downer EDI Engineering Power Pty Ltd (Downer). The Agreement is a single enterprise agreement.

[2] The Agreement covers 20 employees. They all cast a valid vote. 11 (55%) voted in favour of the Agreement.

[3] In addition to one employee bargaining representative, there were two bargaining organisations involved in the agreement making process, namely:

a) the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU); and

b) Communications, Electrical, Electronic, Energy, Information, Post, Plumbing and Allied Services Union of Australia (CEPU).

[4] Both unions object to the approval of the Agreement. The unions object on the basis that, they both contended, the Commission could not be satisfied that all relevant employees genuinely agreed to the Agreement as required by s.186(2) and in accordance with s.188 of the FW Act.

[5] The lack of genuine agreement is said to arise out of two circumstances:

a) The first relates to the fact that, when Downer was explaining the terms of the Agreement to employees (before they voted), employees were provided with, amongst other explanatory documents, a document called the Comparison Document indicating that 17.5% annual leave loading (Leave Loading Statement) would be included in the Agreement. It was not.

The CEPU submitted 5 statements from employees who were said to have voted in favour of the Agreement relying upon the Leave Loading Statement. Noting that the Agreement was only voted up by one vote, if all of the 5 employees put forward by the CEPU had voted against the making of the Agreement, it would not have been made. However, for the reasons explained below in the history of the application I have not had regard to the employees’ statements.

b) The second relates to changes that were made to the Agreement (when compared with the previous 2015 Agreement) relating to the calculation of rates paid to casuals that were not explained in any of the explanatory documents provided to employees.

History of the Application

[6] The history of the application for approval of the Agreement is as follows:

a) On 14 August 2019 Downer made an application for approval of the Agreement. The application was made within 14 days of the making of the Agreement on…

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.

Continue reading Downer EDI Engineering Power Pty Ltd

Details

AGLC: Downer EDI Engineering Power Pty Ltd [2019] FWCA 7930
Case: [2019] FWCA 7930
Decision Date: 4 DECEMBER 2019

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to approve the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019. The application was made by Downer EDI Engineering Power Pty Ltd. The nature of the dispute involved the terms and conditions of employment for employees covered by the agreement. The applicants argued that the agreement met the requirements of the Fair Work Act 2009 and should be approved.

The legal issues before the FWC included whether the agreement was a genuine enterprise agreement, whether it complied with the provisions of the Fair Work Act, and whether it provided for the proper operation of the enterprise and the employees’ terms and conditions of employment. Specifically, the FWC needed to determine if the agreement was made in good faith, if it was free from coercion and undue influence, and if it provided for appropriate mechanisms for the resolution of workplace disputes.

The FWC found that the agreement was a genuine enterprise agreement and met the necessary criteria for approval. It was determined that the agreement was made in good faith and free from coercion or undue influence. Furthermore, the FWC was satisfied that the agreement provided for the proper operation of the enterprise and the employees’ terms and conditions of employment. The FWC noted that the agreement contained provisions for the resolution of workplace disputes and the protection of employees’ rights.

The FWC approved the Downer EDI Engineering Power Pty Ltd South West Maintenance Services Enterprise Agreement 2019. This decision was based on the evidence provided and the FWC's determination that the agreement met the requirements of the Fair Work Act.

Orders