Downer EDI Engineering Power Pty Ltd, DMH Plant Services Pty Ltd

[2023] FWCA 762

[2023] FWCA 762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd, DMH Plant Services Pty Ltd

(AG2023/484)

Downer EDI Engineering Power Pty Ltd & DMH Plant Services Pty Ltd Queensland Shutdown Enterprise Agreement 2023

Manufacturing and associated industries
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 14 MARCH 2023

Application for approval of the Downer EDI Engineering Power Pty Ltd & DMH Plant Services Pty Ltd Queensland Shutdown Enterprise Agreement 2023

1. Downer EDI Engineering Power Pty Ltd and DMH Plant Services Pty Ltd have applied for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd & DMH Plant Services Pty Ltd Queensland Shutdown Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) was first issued to employees on 1 March 2022, 7 days after the notification time for the Agreement. Following bargaining negotiations, the scope of coverage for the Agreement changed significantly, prompting the Employer to re-issue the NERR on 25 January 2023. I am satisfied in all the circumstances that it was appropriate for the Employer to re-issue the NERR to the relevant employees. I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from s.173(3) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. 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.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representatives 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 the organisations.

1. I observe that clause C1.5 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause B5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

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