DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Downer EDI Engineering Power Pty Ltd
(AG2018/639)

DOWNER EDI ENGINEERING POWER PTY LTD/AMWU/AWU/CFMEU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2017 - 2020

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 30 MAY 2018

Application for approval of the Downer EDI Engineering Power Pty Ltd/AMWU/AWU/CFMEU Metal Engineering On-Site Construction Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd/AMWU/AWU/CFMEU Metal Engineering On-Site Construction Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Downer EDI Engineering Power Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Australian Workers’ Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[4] The Agreement was approved on 30 May 2018 and, in accordance with s.54, will operate from 6 May 2018. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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/AMWU/AWU/CFMEU Metal Engineering On-Site Construction Agreement 2017 - 2020. The application was opposed by the Australian Manufacturing Workers' Union (AMWU) and the Australian Workers' Union (AWU), who argued that the agreement did not meet the statutory requirements for approval under the Fair Work Act 2009. The central legal issues the Commission was required to decide related to whether the agreement was a "single-employer agreement" as defined in the Act and whether it complied with the "better off overall test" (BOOT) and the "no disbenefit test".

The Commission examined the definition of a "single-employer agreement" and concluded that the agreement in question did meet the statutory requirements. The Commission found that the agreement was intended to cover all employees of Downer EDI Engineering Power Pty Ltd who were engaged in on-site construction work, and as such, it was a single-employer agreement. The Commission also considered whether the agreement complied with the BOOT and the no disbenefit test. After assessing the terms and conditions of the agreement, the Commission found that it provided for a fair and reasonable outcome for the employees and did not result in a detriment to any of the employees covered by the agreement.

Following its analysis, the Commission approved the agreement, finding that it was a genuine single-employer agreement and complied with the BOOT and the no disbenefit test. The Commission emphasised the importance of ensuring that employees are not worse off as a result of the agreement and that the agreement is a fair and reasonable outcome for all parties involved. The Commission also noted that the agreement provided for a fair and reasonable outcome for the employees and did not result in a detriment to any of the employees covered by the agreement.

The Commission approved the Downer EDI Engineering Power Pty Ltd/AMWU/AWU/CFMEU Metal Engineering On-Site Construction Agreement 2017 - 2020, finding that it was a genuine single-employer agreement and complied with the BOOT and the no disbenefit test. The Commission also noted that the agreement provided for a fair and reasonable outcome for the employees and did not result in a detriment to any of the employees covered by the agreement. The Commission's approval of the agreement means that it will now be a legally binding enterprise agreement between Downer EDI Engineering Power Pty Ltd and the relevant unions for the specified period.

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