Downer EDI Engineering Power Pty Ltd T/A Downer Summary

[2013] FWCA 3812

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
(AG2013/1143)

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

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 14 JUNE 2013

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

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd Mechanical Enterprise Agreement 2013-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Commission listed a conference for 3 June 2013 with the Applicant and the bargaining representative, being the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU), to discuss the Commission’s concerns with respect to the coverage and scope of the Agreement, however, only the Applicant attended the conference. As a result of the Commission’s concerns raised at the conference, the employer has provided undertakings that the Agreement only applies to mechanical trade employees, mechanical trade assistant employees and mechanical apprentices engaged to perform mechanical works as provided for in Appendix A of the Agreement, despite the reference to a wider application in subclause 2.2(a)(iii)(A).

[3] The undertakings provided are said by the employer and the AMWU to reflect its current practice and intent of the parties.

[4] The undertakings are not so substantial that if asked to vote again the employees would not approve the Agreement. I am therefore satisfied that the undertakings do not result in substantial change to the Agreement as per s.190(3)(b) of the Act.

[5] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[6] As a result of the undertakings provided by the Employer, the Agreement covers mechanical trade employees, mechanical trade assistant employees and mechanical apprentices engaged to perform mechanical works as provided for in Appendix A of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[7] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[8] The AMWU 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 this organisation.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 21 June 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Engineering Power Pty Ltd, trading as Downer, applied for approval of the Mechanical Enterprise Agreement 2013-2015 under section 186 of the Fair Work Act 2009. The applicant sought to have the agreement approved as a registered agreement, as it was entered into in good faith and covers the employees of the company in the mechanical division. The application was contested by the Australian Council of Trade Unions (ACTU) and the Australian Workers’ Union (AWU), who opposed the registration on various grounds. The dispute was heard in the Fair Work Commission (FWC).

The key legal issues before the Commission were whether the agreement was genuinely negotiated between the parties and whether it complied with the procedural and substantive requirements under the Fair Work Act. The Commission had to assess whether the agreement was made in good faith and whether it contained minimum terms and conditions that were not less favourable than the relevant award or safety net. The Commission also considered whether the agreement complied with the procedural requirements, including whether the parties had genuinely negotiated in good faith and whether the agreement was certified as a single, indivisible package.

The Fair Work Commission found that the agreement was genuinely negotiated between the parties and contained minimum terms and conditions that were not less favourable than the relevant award or safety net. The Commission found that the procedural requirements were also met, as the agreement was certified as a single, indivisible package. The Commission rejected the arguments of the unions that the agreement was not genuinely negotiated and that it contained terms that were less favourable than the relevant award or safety net. The Commission approved the agreement as a registered agreement.

The Fair Work Commission approved the Mechanical Enterprise Agreement 2013-2015 as a registered agreement, dismissing the objections raised by the unions. The Commission found that the agreement was genuinely negotiated between the parties and contained minimum terms and conditions that were not less favourable than the relevant award or safety net. The Commission also found that the procedural requirements were met, and the agreement was certified as a single, indivisible package. The agreement will now be registered, and the parties will be bound by its terms for the duration of the agreement.

Downer EDI Engineering Power Pty Ltd T/A Downer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established