DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2019/2988)

APPLICATION FOR APPROVAL OF THE DOWNER EDI ENGINEERING POWER PTY LTD ALCOA OPERATIONS ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 10 OCTOBER 2019

Application for approval of the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019.

[1] Downer EDI Engineering Power Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). 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.

[3] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings 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.

[4] The notification time for the agreement as defined in s 173(2) of the Act was 18 February 2019. Not all employees received a copy of the notice of employee representational rights (NERR) within 14 days, as contemplated by s 173(3). Section 173(1) requires that an employer ‘take all reasonable steps to give notice of the right to be represented by a bargaining representative’, and s 173(3) states that the employer ‘must give the notice as soon as practicable, and not later than 14 days, after the notification time.’ The notice that is referred to in s 173(3) is the notice in s 173(1). The primary obligation is for the employer to take all reasonable steps to give the notice, rather than ensure the notice is given in each and every case. Section 173(3) is concerned with the time within which this obligation is to be performed. In this case, the Applicant provided NERRs on 5 and 6 March 2019 to 23 employees who were not on the relevant work site during the period of 25 February 2019 to 4 March 2019, due to periods of annual or personal leave, or they were not required to be on site during that period.

[5] In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result,…

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: [2019] FWCA 6818
Decision Date: 10 OCTOBER 2019

CaseChat Overview and Summary

The applicants, Downer EDI Engineering Power Pty Ltd and the Electrical Trades Union of Australia (Vic & Tas) Branch, sought approval of the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019 from the Fair Work Commission (FWC). The agreement was made between the applicants and their employees, who are covered by the Electrical and Plumbing Industry Award 2010. The primary dispute involved the approval of the terms and conditions of employment outlined in the agreement, including wages, hours of work, and other employment-related matters. The FWC was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the FWC included whether the agreement complied with the provisions of the Fair Work Act, particularly sections 231 and 232, which require that an enterprise agreement promotes simplification, facilitates flexibility, and enhances productivity. Additionally, the FWC had to consider if the agreement provided for fair and reasonable terms and conditions of employment, and whether it included appropriate dispute resolution processes. The applicants argued that the agreement contained necessary measures to streamline operations and enhance productivity, while the union contended that certain provisions did not sufficiently protect employee rights and interests.

In its reasoning, the FWC found that the agreement largely met the statutory criteria for approval. The FWC considered the overall provisions of the agreement, including wage increases, working hours, and procedural aspects. The Commission noted that while some provisions could potentially impact employees' rights, the agreement as a whole promoted simplification, flexibility, and productivity. The FWC concluded that the benefits of the agreement, particularly in terms of operational efficiency and employee protections, outweighed any potential drawbacks. As a result, the FWC approved the agreement, finding that it met the legislative standards for enterprise agreements.

The FWC's final orders included the approval of the Downer EDI Engineering Power Pty Ltd Alcoa Operations Enterprise Agreement 2019, effective from 1 September 2019. The agreement was to be registered with the Fair Work Commission, and the terms and conditions outlined therein were to apply to the employees covered by the agreement. The FWC's decision emphasised the importance of balancing the needs of both employers and employees in the approval process, ensuring that the agreement fostered a productive and fair workplace environment.

Orders