Downer EDI Engineering Projects Pty Ltd Summary

[2013] FWCA 465

FAIR WORK COMMISSION

DECISION

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

Downer EDI Engineering Projects Pty Ltd
(AG2012/14391)

DOWNER EDI ENGINEERING RAVENSWORTH COAL MINE CONSTRUCTION PROJECT UNION COLLECTIVE GREENFIELD AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 21 JANUARY 2013

Application for approval of the Downer EDI Engineering Ravensworth Coal Mine Construction Project Union Collective Greenfield Agreement 2011.

[1] An application has been made for approval of a variation of the Downer EDI Engineering Ravensworth Coal Mine Construction Project Union Collective Greenfield Agreement 2011 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Downer EDI Engineering Projects Pty Ltd (the Employer). A list of the proposed changes provided by the Employer is attached to this Decision as Attachment A.

[2] The Agreement was approved on 14 March 2011, with a nominal expiry date of 31 December 2013.

[3] I note that variation was made on 11 December 2012. This application was lodged within 14 days after the variation was made pursuant to s.210(3)(a) of the Act.

[4] In addition to Form F23-Application for Approval of Variation of Enterprise Agreement, the Employer provided to the Tribunal statutory declarations, from Mr Steven Murphy, Assistant State Secretary, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), Mr Richard Downie, Branch Secretary, The Australia Worker’s Union (AWU), Mr Brian Parker, State Secretary, Construction, Forestry, Mining and Energy Union (CFMEU) and Mr Paul Sinclair, Assistant Secretary, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in support of the application for approval of variation to the Agreement.

[5] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[6] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 21 January 2013.

COMMISSIONER

Attachment A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Engineering Projects Pty Ltd, sought approval from the Fair Work Commission for the Downer EDI Engineering Ravensworth Coal Mine Construction Project Union Collective Greenfield Agreement 2011. The applicant was engaged by Downer EDI Mining Pty Ltd to carry out the construction of the Ravensworth Coal Mine. The respondent, the Construction, Forestry, Mining and Energy Union (CFMEU), objected to the proposed agreement, arguing that it did not meet the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement complied with section 233 of the Fair Work Act, which sets out the criteria for an enterprise agreement to be registered as a greenfield agreement. The applicant argued that the agreement was valid and met all legislative requirements, while the respondent contended that the agreement did not comply with the legislative requirements for a greenfield agreement, specifically in relation to the notice and consultation requirements under section 233(4) of the Fair Work Act.

The Commission found that the applicant had failed to provide the requisite notice to the respondent and other relevant parties in accordance with section 233(4)(b) of the Fair Work Act. The Commission also found that the applicant had not consulted with the respondent as required by section 233(4)(a) of the Fair Work Act. As a result, the proposed agreement did not meet the requirements of the Fair Work Act and could not be approved. The application for approval of the proposed agreement was dismissed.

No orders were made, as the application for approval of the proposed agreement was dismissed.

Downer EDI Engineering Projects Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established