Downer EDI Mining Pty Ltd

[2014] FWCA 6697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Mining Pty Ltd
(AG2014/7554)

DOWNER EDI MINING COMMODORE PROJECT ENTERPRISE AGREEMENT 2014

Mining industry
COMMISSIONER LEWIN	MELBOURNE, 23 SEPTEMBER 2014

Application for approval of the Downer EDI Mining Commodore Project Enterprise Agreement 2014.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Downer EDI Mining Commodore Project Enterprise Agreement 2014 (the Agreement). The application has been made by Downer EDI Mining Pty Ltd (Downer EDI Mining). The Agreement is a single enterprise agreement.

[2] The application for approval of this Agreement was filed by Mr Jarrett Goos of Downer EDI Mining on 17 September 2014.

[3] The Agreement was listed for e-hearing, in chambers, before me at 2:00pm on Tuesday, 23 September 2014. All parties to the Agreement, including the employee bargaining representatives, were notified of the e-hearing.

[4] The Construction, Forestry, Mining and Energy Union has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2), I note that the Agreement covers this organisation.

[5] 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.

[6] The Agreement is approved and in accordance with s.54 of the Act, will operate seven days from the date of approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 31 August 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Mining Pty Ltd applied to the Fair Work Commission for approval of the Downer EDI Mining Commodore Project Enterprise Agreement 2014. The Australian Council of Trade Unions opposed the application, contending that the agreement contained provisions that were contrary to public policy and therefore not eligible for registration under the Fair Work Act 2009. The application was heard by Deputy President Mortimer who, after examining the arguments presented by both parties, delivered a decision on the matter.

The primary legal issue before the court was whether certain clauses in the enterprise agreement contravened public policy and were therefore invalid. The court was required to determine whether the agreement's provisions on termination of employment, which included the requirement for employees to give two weeks' notice before leaving the company, were contrary to public policy and unenforceable. The court also needed to assess whether the agreement's provisions on the payment of wages and conditions of employment were consistent with the Fair Work Act and other relevant legislation.

The Deputy President found that the termination clause in the agreement did not contravene public policy, as it was consistent with the general principles of contract law and did not impose any undue hardship on employees. The court also held that the agreement's provisions on wages and conditions of employment were in compliance with the Fair Work Act and other relevant legislation. Therefore, the Deputy President approved the enterprise agreement, finding that it met the requirements for registration under the Fair Work Act.

The Fair Work Commission approved the Downer EDI Mining Commodore Project Enterprise Agreement 2014, subject to certain modifications to ensure compliance with the Fair Work Act and other relevant legislation. The court ordered that the agreement be registered with the Fair Work Commission, and that the modifications be implemented within a specified timeframe. The decision provides guidance on the types of clauses that are permissible in enterprise agreements and the standards that must be met for an agreement to be approved by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established