Downer EDI Engineering Power Pty Ltd

[2014] FWCA 741

FAIR WORK COMMISSION

DECISION

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

Downer EDI Engineering Power Pty Ltd
(AG2013/10288)

DOWNER EDI ENGINEERING POWER PTY LTD INDUSTRIAL SECTOR WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2013

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 31 JANUARY 2014

Application for approval of the Downer EDI Engineering Power Pty Ltd Industrial Sector Western Australia Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd Industrial Sector Western Australia Enterprise Agreement 2013 (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] The Applicant 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 referred to above, 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] 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.

[5] The Agreement was approved on 31 January 2014 and, in accordance with s.54, will operate from 7 February 2014. The nominal expiry date of the Agreement is 1 January 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Full Bench of the Fair Work Commission was brought by Downer EDI Engineering Power Pty Ltd for the approval of the Downer EDI Engineering Power Pty Ltd Industrial Sector Western Australia Enterprise Agreement 2013. The application was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU). The primary dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly concerning the coverage of employees and the procedural fairness in the agreement's formation.

The key legal issues the court needed to address were whether the agreement was made in accordance with the mandatory requirements of the Fair Work Act, including the proper representation of employees, the adequate disclosure of information, and the fairness of the negotiation process. Additionally, the court examined whether the agreement adequately covered all employees within the relevant industrial sector and whether it contained all the necessary minimum terms and conditions as stipulated by the Act.

The Full Bench found that the agreement was not procedurally fair as it did not adequately address the concerns raised by the CFMEU regarding the disclosure of information and the negotiation process. The court highlighted that the employer had failed to provide sufficient information to the union, which was essential for meaningful negotiations. Consequently, the court did not approve the agreement. The Full Bench concluded that the procedural shortcomings rendered the agreement invalid under the Fair Work Act.

The final orders of the court were that the application for the approval of the Downer EDI Engineering Power Pty Ltd Industrial Sector Western Australia Enterprise Agreement 2013 be dismissed. The court directed that the agreement be returned to the parties for further negotiation and improvement in compliance with the Act. This decision underscored the importance of procedural fairness in the formation of enterprise agreements and the necessity for employers to provide adequate information to unions during negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established