Downer EDI Engineering Pty Ltd

[2014] FWCA 3357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Downer EDI Engineering Pty Ltd
(AG2014/1081)

DOWNER EDI ENGINEERING QUEENSLAND LNG AND CSG INFRASTRUCTURE PROJECTS ENTERPRISE AGREEMENT 2014-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 22 MAY 2014

Application for approval of the Downer EDI Engineering Queensland LNG and CSG Infrastructure Projects Enterprise Agreement 2014-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 9 May 2014 by Downer EDI Engineering Pty Ltd for the approval of a single-enterprise agreement known as the Downer EDI Engineering Queensland LNG and CSG Infrastructure Projects Enterprise Agreement 2014-2015(“the Agreement”).

[2] On 21 May 2014, the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[3] In light of the employer’s undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”) and the Australian Workers’ Union (“the AWU”), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the CEPU, AMWU and AWU.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Engineering Pty Ltd applied for the approval of the Downer EDI Engineering Queensland LNG and CSG Infrastructure Projects Enterprise Agreement 2014-2015. The application was brought under the Fair Work Act 2009. The respondents were various trade unions who objected to the application on several grounds. The matter was heard in the Federal Circuit Court of Australia.

The court had to decide whether the agreement was a "better off overall test" (BOOT) agreement as defined in the Act. A BOOT agreement is one that provides employees with a pay rise or other benefits that are better than what they would receive under the applicable awards or existing enterprise agreements. The unions argued that the agreement did not meet the BOOT criteria, as it contained provisions that were less favourable to employees than existing awards or agreements. They also argued that the agreement did not comply with the good faith bargaining requirements of the Act.

The court found that the agreement did meet the BOOT criteria, as it provided employees with a pay rise and other benefits that were better than what they would receive under the applicable awards or existing enterprise agreements. The court also found that the agreement complied with the good faith bargaining requirements of the Act, as the parties had negotiated in good faith and reached an agreement that was fair and reasonable. The court approved the agreement, and the unions' objections were dismissed.

The court's approval of the agreement was made subject to certain conditions, including that the agreement be registered with the Fair Work Commission and that the employer provide the unions with certain information about the agreement. The unions were also granted leave to appeal the court's decision to the Full Court of the Federal Circuit Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established