DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Rail Pty Ltd T/A Downer EDI Rail
(AG2018/2518)

DOWNER EDI RAIL TEC MORWELL ENTERPRISE AGREEMENT 2018 - 2021

Rail industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 SEPTEMBER 2018

Application for approval of the Downer EDI Rail TEC Morwell Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of a greenfields agreement known as the Downer EDI Rail Tec Morwell Enterprise Agreement 2018 – 2021 (the Agreement). The application was made by Downer EDI Rail Pty Ltd T/A Downer EDI Rail pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and that the Agreement covers these organisations.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 September 2018. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Rail Pty Ltd, trading as Downer EDI Rail, applied to the Fair Work Commission for the approval of the Downer EDI Rail TEC Morwell Enterprise Agreement 2018 - 2021. The Fair Work Commission, which has the power to approve enterprise agreements under the Fair Work Act 2009, was tasked with determining whether the agreement met the requirements of the Act.

The primary legal issue before the Commission was whether the enterprise agreement complied with the Fair Work Act and related regulations. Specifically, the Commission had to consider whether the agreement contained the necessary "protected action provisions" and if the required consultation process with employees had been followed. Another significant point of contention was whether the agreement unfairly disadvantaged certain employees, particularly those in the TEC Morwell workforce.

The Commission found that the agreement did indeed meet the legislative requirements. It contained the necessary protected action provisions and had been developed following adequate consultation with the employees. The Commission was satisfied that the agreement did not unfairly disadvantage any employees, including those in the TEC Morwell workforce. Consequently, the Commission approved the Downer EDI Rail TEC Morwell Enterprise Agreement 2018 - 2021, effective from the date of the approval decision.

The Commission's final orders included the approval of the enterprise agreement, effective from the date of the decision. The agreement was to be registered by Downer EDI Rail and served on the parties in accordance with the Fair Work Act. The decision was binding on all parties covered by the agreement, including the employees, Downer EDI Rail, and any other relevant parties.

Downer EDI Rail Pty Ltd T/A Downer EDI Rail

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established