DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2019/706)

DOWNER EDI ENGINEERING POWER PTY LTD SYDNEY CONSTRUCTION UNION ENTERPRISE AGREEMENT 2019

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 13 JUNE 2019

Application for approval of the Downer EDI Engineering Power Pty Ltd Sydney Construction Union Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd Sydney Construction Union Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Downer EDI Engineering Power Pty Ltd (Employer). 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] Subject to the undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement lodged contained an administrative error at clause 3. On 22 May 2019, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 June 2019. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd applied to the Fair Work Commission for the approval of the Downer EDI Engineering Power Pty Ltd Sydney Construction Union Enterprise Agreement 2019. The Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union opposed the application. The applicants sought to finalise the agreement to address the terms and conditions of employment of the workforce. The Fair Work Commission needed to determine whether the agreement met the requirements under the Fair Work Act 2009 and whether the parties had genuinely bargained for the agreement.

The central issue was whether the agreement contained terms that were contrary to the public interest, as the Fair Work Commission was required to consider under section 235 of the Fair Work Act. The unions argued that certain provisions of the agreement were not in the public interest, including those relating to the dismissal of employees. The Commission needed to weigh the public interest against the freedom of contract and the parties' bargaining power.

The Fair Work Commission found that while some provisions of the agreement were not in the public interest, these could be disregarded under section 236 of the Fair Work Act. The Commission determined that the agreement, when read as a whole, did not contain terms that were contrary to the public interest. The Commission approved the agreement with the offending provisions disregarded. The applicants were successful in their application for the approval of the enterprise agreement.

The Fair Work Commission approved the Downer EDI Engineering Power Pty Ltd Sydney Construction Union Enterprise Agreement 2019, with certain provisions disregarded. The agreement was to be registered and in effect from 1 July 2019. The unions' application to set aside the approval was dismissed. The Commission found that the agreement, despite some provisions being contrary to the public interest, did not overall conflict with the public interest. The agreement was approved, and the applicants' application was successful.

Downer EDI Engineering Power 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