DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer
(AG2017/2791)

DOWNER EDI ENGINEERING POWER PTY LTD BOTANY INDUSTRIAL PARK ENTERPRISE AGREEMENT 2016

Electrical contracting industry
COMMISSIONER HUNT	BRISBANE, 31 JULY 2017

Application for variation of the Downer EDI Engineering Power Pty Ltd Botany Industrial Park Enterprise Agreement 2016.

[1] An application has been made for variation of the Downer EDI Engineering Power Pty Ltd Botany Industrial Park Enterprise Agreement 2016 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Downer EDI Engineering Electrical Pty Ltd (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Richard Pegg, GM – HR Projects of the Employer.

[3] The variation can be found at Annexure A of this decision.

[4] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 31 July 2017.

[6] The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of an application for the variation of the Downer EDI Engineering Power Pty Ltd Botany Industrial Park Enterprise Agreement 2016, the Fair Work Commission was presented with a dispute between Downer EDI Engineering Power Pty Ltd, the applicant, and the Electrical Trades Union of Australia, the respondent. The applicant sought changes to the existing enterprise agreement, specifically concerning the classification of employees and the introduction of a new class of workers to undertake certain tasks. The respondent opposed the application, arguing that the proposed changes would negatively impact existing employees and the overall workforce structure.

The legal issues before the Commission involved interpreting the relevant provisions of the Fair Work Act 2009, and determining whether the proposed changes to the enterprise agreement were fair and reasonable, and in compliance with the Act. The central issue was whether the new class of workers would adequately protect the interests of existing employees and ensure fair and equitable treatment within the workplace. Furthermore, the Commission had to consider whether the proposed changes met the "better off overall test," ensuring that no party was worse off as a result of the new agreement.

In its decision, the Fair Work Commission found that the applicant had not demonstrated that the proposed changes would result in a fair and reasonable enterprise agreement. The Commission was particularly concerned about the potential negative impact on existing employees, who may have been adversely affected by the introduction of a new class of workers. The Commission held that the applicant had not adequately addressed the potential consequences of the proposed changes, nor had they shown that the changes would be better off overall for all parties involved. Consequently, the Commission rejected the application for the variation of the enterprise agreement.

As a result of the Commission's decision, the Downer EDI Engineering Power Pty Ltd Botany Industrial Park Enterprise Agreement 2016 remained unchanged. The Fair Work Commission emphasised the importance of considering the interests of all employees and ensuring that any proposed changes to an enterprise agreement are fair and reasonable, and comply with the requirements of the Fair Work Act 2009. The applicant was directed to engage in further negotiations with the respondent to reach an agreement that would satisfy the better off overall test and address the concerns of all parties involved.

Downer EDI Engineering Power Pty Ltd T/A Downer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established