Downer Edi Engineering Power Pty Ltd T/A Downer

[2024] FWCA 470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Downer Edi Engineering Power Pty Ltd T/A Downer

(AG2023/5418)

DOWNER EDI ENGINEERING POWER PTY LTD & ETU NSW/ACT CONSTRUCTION UNION AGREEMENT 2022 - 2025

Electrical power industry
COMMISSIONER THORNTON	ADELAIDE, 6 FEBRUARY 2024

Application for approval of the Downer EDI Engineering Power Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd & ETU NSW/ACT Construction Union Agreement 2022 – 2025 (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 T/A Downer (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

I note that clause 25 may be inconsistent with the National Employment Standards (NES). Noting clause 16(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act from 13 February 2024. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Power Pty Ltd T/A Downer applied for the approval of an enterprise agreement between the company and the ETU NSW/ACT Construction Union, covering the period from 2022 to 2025. The application was made under section 185 of the Fair Work Act 2009 and was heard by Commissioner Thornton in the Fair Work Commission. The agreement, which pertains to the electrical power industry, was proposed as a single enterprise agreement. The Electrical Power Industry Union (CEPU) also expressed an interest in being covered by the agreement.

The primary legal issue for the Commission to decide was whether the proposed agreement met the requirements of sections 186, 187, and 188 of the Fair Work Act 2009, which are relevant to the approval of enterprise agreements. Additionally, there was a concern about potential inconsistency between certain clauses of the agreement and the National Employment Standards (NES). The Commissioner noted that while clause 25 of the agreement might conflict with the NES, clause 16(b) ensured that the NES would take precedence where such inconsistencies arose.

The Commissioner found that all necessary requirements for the approval of the agreement had been met, including the coverage of the CEPU as required under section 201(2) of the Act. The agreement was approved and will be in effect from 13 February 2024 until its nominal expiry date of 31 October 2025. The Commissioner's decision was based on the satisfactory fulfillment of all statutory conditions and the resolution of any potential inconsistencies with the NES.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established