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

[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

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.

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.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were Downer EDI Engineering Power Pty Ltd and DMH Plant Services Pty Ltd, who sought approval for their Queensland Shutdown Enterprise Agreement 2023. The dispute centred on whether the proposed agreement met the necessary requirements under the Fair Work Act 2009. The matter was heard in the Fair Work Commission, which is tasked with ensuring that workplace agreements comply with Australian labour laws. The primary legal issues the court had to address were whether the agreement fairly represented the interests of the employees and whether it adhered to the provisions of the Fair Work Act, particularly in terms of procedural fairness and the protection of employee rights.

The court considered whether the agreement was appropriately negotiated and whether it was presented to the employees in a manner that allowed them to fully understand and discuss its contents. It also evaluated the extent to which the agreement met the minimum standards set by the Act, including provisions on wages, conditions, and dispute resolution mechanisms. The court examined the process through which the agreement was reached, focusing on whether there was genuine consultation and whether the final document accurately reflected the outcomes of this process. Additionally, the court assessed whether the agreement contained mandatory terms that were required by law and whether any optional terms provided adequate protections or benefits to the employees.

Upon review, the court found that the agreement was the result of a genuine negotiation process that allowed for sufficient consultation and input from the employees. It concluded that the agreement complied with the procedural requirements and substantive provisions of the Fair Work Act. The court determined that the agreement fairly represented the interests of the employees and contained the necessary mandatory terms while also offering additional protections and benefits. Therefore, the court approved the Queensland Shutdown Enterprise Agreement 2023 between Downer EDI Engineering Power Pty Ltd and DMH Plant Services Pty Ltd. This decision ensures that the agreement will be legally binding and will govern the employment terms for the employees covered by this agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established