Downer EDI Rail Pty Ltd T/A EDI Rail

[2021] FWCA 6116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Rail Pty Ltd T/A EDI Rail

(AG2021/7597)

Downer EDI Rail TEC Morwell Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER O’NEILL	MELBOURNE, 6 OCTOBER 2021

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

EDI Rail has applied for approval of an enterprise agreement known as the Downer EDI Rail TEC Morwell Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 24.3 – Taking personal sick and carer’s leave;
·           Clause 25 – Compassionate Leave;
·           Clause 31.4 – Notice of Termination; and
·           Clause 32.1 – Redundancy/Severance.

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 October 2021. The nominal expiry date of the Agreement is 23 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Downer EDI Rail Pty Ltd trading as EDI Rail, the Fair Work Commission was tasked with assessing the proposed Downer EDI Rail TEC Morwell Enterprise Agreement 2021. This industrial agreement was submitted for approval under the Fair Work Act 2009. The primary dispute centred around the compliance of the agreement with the Act and the Fair Work (Registered Organisations) Act 2009.

The central legal issues before the Commission involved determining whether the agreement met the requirements for a valid enterprise agreement, including whether it had been fairly and properly negotiated and whether it complied with the provisions of the Fair Work Act. Specifically, the Commission needed to examine the process by which the agreement was negotiated, the extent to which it provided for the terms and conditions of employment for the relevant employees, and whether it contained any unfair content. Furthermore, the Commission assessed whether the agreement met the 'better off overall test' and was made in good faith.

The Commission found that the agreement had been fairly and properly negotiated, was compliant with the statutory requirements, and was in the best interests of the employees. The Commission concluded that the agreement contained no unfair content and was made in good faith. It found that the employees would be better off overall under the terms of the agreement. The Commission approved the agreement and made the necessary orders for its registration.

The Fair Work Commission approved the Downer EDI Rail TEC Morwell Enterprise Agreement 2021 and ordered its registration, effective from the date of the decision. The agreement now legally binds the parties and governs the employment terms and conditions for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established