DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Mining Pty Ltd
(AG2018/1931)

DOWNER EDI MINING COMMODORE PROJECT ENTERPRISE AGREEMENT 2017

Mining industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 OCTOBER 2018

Application for approval of the Downer EDI Mining Commodore Project Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Mining Commodore Project Enterprise Agreement 2017 (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 Mining Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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, 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Agreement lodged contained an error at Clause 8.2.1. On 26 September 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[6] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2018. The nominal expiry date of the Agreement is 8 October 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

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 2017. The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union, objected to the approval of the agreement, arguing it did not meet the "better off overall test" as required by section 234 of the Fair Work Act 2009. The central issue before the Commission was whether the agreement provided employees with a fair and reasonable outcome, ensuring they were no worse off and at least as well off as they would be under their applicable award or registered agreement.

The Commission examined the provisions of the agreement and the evidence presented by both parties. It considered the economic circumstances of the enterprise, the financial position of the employer, and the relative bargaining positions of the parties. The Commission also took into account the need for flexibility and productivity improvements in the mining industry. After weighing the evidence and arguments, the Commission found that the agreement met the "better off overall test" and approved the agreement, noting that it provided a fair and reasonable outcome for the employees.

The Fair Work Commission approved the Downer EDI Mining Commodore Project Enterprise Agreement 2017, determining that it met the "better off overall test" as required by section 234 of the Fair Work Act 2009. The Commission considered the economic circumstances of the enterprise, the financial position of the employer, and the relative bargaining positions of the parties. The Commission also took into account the need for flexibility and productivity improvements in the mining industry. The Commission found that the agreement provided a fair and reasonable outcome for the employees and approved it accordingly.

Downer EDI Mining Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established