DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure
(AG2015/448)

DOWNER EDI ENGINEERING POWER PTY LTD CIVIL OPERATIONS ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 25 MARCH 2015

Application for approval of the Downer EDI Engineering Power Pty Ltd Civil Operations Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Engineering Power Pty Ltd Civil Operations Enterprise Agreement 2015 (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 Infrastructure. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement was approved on 25 March 2015 and, in accordance with s.54, will operate from 1 April 2015. The nominal expiry date of the Agreement is 25 March 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Downer EDI Engineering Power Pty Ltd Civil Operations Enterprise Agreement 2015. The applicant, Downer EDI Engineering Power Pty Ltd, sought to have the agreement approved under the Fair Work Act 2009. The respondents, including various employee unions and individual employees, contested the application, raising concerns about the fairness and compliance of the agreement with the relevant legislative provisions.

The primary legal issue for the court to determine was whether the proposed enterprise agreement was fair and met the criteria for approval as outlined in the Fair Work Act. This involved assessing the agreement against the 'better off overall test', ensuring that employees would not be worse off financially or in terms of conditions, and verifying that the agreement complied with the provisions of the Act concerning minimum entitlements and the avoidance of individual disadvantage. Additionally, the court needed to consider whether the agreement had been genuinely negotiated and whether the necessary procedural requirements had been met.

The Fair Work Commission, after reviewing the evidence and arguments presented, concluded that the proposed agreement did not meet the 'better off overall test'. The Commission found that certain employees would be disadvantaged by the proposed changes, particularly in relation to penalty rates and leave provisions. The Commission also noted that the negotiation process did not fully comply with the requirements of the Act. As a result, the application for approval was dismissed, and the enterprise agreement was not approved. This decision was based on the Commission's determination that the agreement did not adequately protect the rights and interests of the employees as required by law.

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established