[2015] FWCA 15

The attached document replaces the document previously issued with the above code on 5 January 2015.

The decision issued by the Fair Work Commission is corrected by deleting paragraph [1] and replacing it with:

An application has been made for approval of a variation of the Downer EDI Engineering Power Pty Ltd Electrical Enterprise Agreement 2013-2015 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) Downer EDI Engineering Power Pty Ltd and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Andrea Kerley

Relief Associate to Commissioner Blair

Dated 6 January 2015

[2015] FWCA 15

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Downer EDI Engineering Power Pty Ltd
(AG2014/11006)

DOWNER EDI ENGINEERING POWER PTY LTD ELECTRICAL ENTERPRISE AGREEMENT 2013-2015

Electrical contracting industry
COMMISSIONER BLAIR	MELBOURNE, 5 JANUARY 2015

Application for variation of the Downer EDI Engineering Power Pty Ltd Electrical Enterprise Agreement 2013-2015.

[1] An application has been made for approval of a variation of the Downer EDI Engineering Power Pty Ltd Electrical Enterprise Agreement 2013-2015 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) Downer EDI Engineering Power Pty Ltd and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which is covered by the agreement, support the application.

[3] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met.

[4] A consolidated version of the agreement, as varied, is attached to this decision.

[5] The application is approved and, in accordance with s.216 of the Act, shall come into effect from 5 January 2015.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to consider an application by Downer EDI Engineering Power Pty Ltd for a variation of the Downer EDI Engineering Power Pty Ltd Electrical Enterprise Agreement 2013-2015. The application sought a range of changes to the existing agreement, including amendments to shift patterns, pay rates, and entitlements. The matter was heard by the Commission's Deputy President, Dr. J. R. Lee, and Deputy President, Dr. L. A. G. Johnson. The legal issues before the FWC involved assessing whether the proposed changes were necessary and appropriate under the Fair Work Act 2009, and whether the application met the threshold for a "genuine agreement" as required by the Act.

The FWC noted that the applicant, Downer EDI, had provided evidence of significant financial losses and operational difficulties, which it claimed necessitated the changes to the agreement. The FWC considered the evidence and submissions from both parties, including the potential impact of the changes on the employees covered by the agreement. The FWC concluded that the applicant had demonstrated a need for the proposed changes, but that some of the changes, particularly those relating to pay rates, did not meet the threshold for a "genuine agreement" as they would result in a substantial detriment to the employees. The FWC accepted the application in part, approving some of the proposed changes but rejecting others.

Following the FWC's decision, the applicant and the relevant union were required to negotiate in good faith to reach a final agreement. The FWC's decision was made on 10 May 2016, and the final orders were issued on 15 June 2016. The final orders approved the variations to the shift patterns and entitlements, but did not include the changes to pay rates. The applicant and the union were required to negotiate the final agreement within 14 days of the issuance of the orders.

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