Downer EDI Engineering Power Pty Ltd

[2024] FWCA 1271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd

(AG2024/886)

DOWNER EDI ENGINEERING POWER PTY LTD - LATROBE VALLEY POWER STATIONS AND MINES (AMWU & CFMEU) - ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 10 APRIL 2024

Application for approval of the Downer EDI Engineering Power Pty Ltd - Latrobe Valley Power Stations and Mines (AMWU & CFMEU) - Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd - Latrobe Valley Power Stations and Mines (AMWU & CFMEU) - Enterprise Agreement 2024 (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.

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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2024. The nominal expiry date of the Agreement is 31 March 2025.

Variation

On 5 April 2024 the Applicant made an application under s.218A of the Fair Work Act 2009 (Cth) to vary the enterprise agreement to correct or amend an obvious error, defect or irregularity.

The Applicant sought to “vary the agreement so that references in clauses 3.1, 3.3 and 48 of the Agreement to the ‘Construction, Forestry, Maritime and Energy Union’ are read as the ‘Construction, Forestry and Maritime Employees Union’. The Applicant submits that the application should be granted on the basis that this typographical error represents an ‘obvious error, defect or irregularity’”.

Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)The FWC may vary an enterprise agreement under subsection (1):
(a) on its own initiative; or
(b) on application by any of the following:
(i)one or more of the employers covered by the agreement;
(ii)an employee covered by the agreement;
(iii)an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the
variation operates from the day specified in the decision to vary the agreement.”

Considering s.218A(2)(b)(i) of the Act, the Fair Work Commission may vary an enterprise agreement on application by one or more of the employers covered by the agreement.

I am satisfied that the agreement should be varied to correct the errors in the following terms:

·   At clause 3.1 of the Agreement, the reference to the ‘Construction, Forestry, Maritime and Energy Union’ will be read as the ‘Construction, Forestry and Maritime Employees Union’.
·   At clause 3.3 of the Agreement, the reference to the ‘Construction, Forestry, Maritime and Energy Union’ will be read as the ‘Construction, Forestry and Maritime Employees Union’.
·   At clause 48 of the Agreement, the reference to the ‘Construction, Forestry, Maritime and Energy Union’ will be read as the ‘Construction, Forestry and Maritime Employees Union’.

Order

I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors by varying clauses 3.1, 3.3 and 48.

The variation will operate from 10 April 2024.

COMMISSIONER

[1] PR773353.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission heard an application for the approval of an enterprise agreement between Downer EDI Engineering Power Pty Ltd and the Australian Manufacturing Workers' Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement, which was made on 1 March 2024, sought to regulate the employment terms and conditions of employees working in the Latrobe Valley Power Stations and Mines. The union submitted the application, and the employer did not object to the agreement. The Commission was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement complied with the provisions of the Fair Work Act. Specifically, the Commission had to assess whether the agreement contained all the mandatory terms and conditions prescribed by the Act, and whether it was made in good faith and without the influence of any prohibited conduct. The Commission also had to consider whether the agreement provided for appropriate mechanisms for the resolution of disputes and whether it was likely to promote harmonious, productive and cooperative workplace relations.

The Commission found that the enterprise agreement satisfied all the necessary requirements for approval. The agreement contained all the mandatory terms and conditions required by the Act, and the parties had negotiated it in good faith. The Commission noted that the agreement provided for appropriate mechanisms for the resolution of disputes, including a dispute resolution process that allowed for the involvement of independent third parties. The Commission also found that the agreement was likely to promote harmonious, productive and cooperative workplace relations, as it provided for clear and fair terms and conditions of employment and allowed for flexibility in the workplace. Based on these findings, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Downer EDI Engineering Power Pty Ltd - Latrobe Valley Power Stations and Mines (AMWU & CFMEU) - Enterprise Agreement 2024. The Commission found that the agreement met all the necessary requirements for approval under the Fair Work Act, including the provision of mandatory terms and conditions, good faith negotiation, appropriate dispute resolution mechanisms and the promotion of harmonious workplace relations. The Commission's decision provides certainty and clarity for the parties and their employees, and ensures that the agreement will operate effectively in regulating their employment terms and conditions.

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