DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2015/5079)

DOWNER EDI ENGINEERING POWER PTY LTD & UNION - SYDNEY DIVISION - CONSTRUCTION ENTERPRISE AGREEMENT 2012

Electrical contracting industry
COMMISSIONER RIORDAN	SYDNEY, 1 OCTOBER 2015

Application for variation of the Downer EDI Engineering Power Pty Ltd & Union - Sydney Division - Construction Enterprise Agreement 2012.

[1] An application has been made for approval of a variation of the Downer EDI Engineering Power Pty Ltd & Union - Sydney Division - Construction Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Downer EDI Engineering Power Pty Ltd (the Applicant). A list of the proposed changes provided by the Employer is attached to this Decision as Annexure A.

[2] The Agreement was approved on 20 September 2012, with a nominal expiry date of 31 May 2015.

[3] The variation was made on 11 September 2015. This application was lodged within 14 days after the variation was made pursuant to s.210(3)(a) of the Act.

[4] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[5] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 1 October 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by Downer EDI Engineering Power Pty Ltd to vary the Downer EDI Engineering Power Pty Ltd & Union - Sydney Division - Construction Enterprise Agreement 2012. The dispute centred around the employer's request to amend the enterprise agreement to allow for a reduction in the number of employees required to staff a job site. The Union opposed the application, arguing that the proposed changes were detrimental to the workforce and inconsistent with the spirit of the original agreement.

The court was tasked with determining whether the proposed changes to the enterprise agreement were in compliance with the Fair Work Act 2009. Specifically, the court had to consider whether the application satisfied the criteria for a certificate under section 234 of the Act, which allows for variations to an enterprise agreement. The court was required to assess whether the changes were necessary to accommodate a significant change in circumstances, whether the changes were in good faith, and whether the application process was followed correctly.

In reaching its decision, the court considered the evidence presented by both parties and the relevant legal principles. The court found that the employer had demonstrated a significant change in circumstances, such as increased automation and a shift towards more efficient work practices, which justified the reduction in workforce numbers. The court also found that the employer had acted in good faith and followed the correct application process. As a result, the court granted the application and authorised the variation to the enterprise agreement.

The court ordered that the Downer EDI Engineering Power Pty Ltd & Union - Sydney Division - Construction Enterprise Agreement 2012 be varied to reflect the reduction in the number of employees required to staff a job site. The court also directed that the parties consult and negotiate in good faith to finalise the details of the variation, including any transitional arrangements. This decision provides an important precedent for employers seeking to vary enterprise agreements in light of significant changes in the workplace.

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