Downer EDI Works

[2013] FWCA 3399

FAIR WORK COMMISSION

DECISION

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

Downer EDI Works
(AG2013/1057)

DOWNER NSW STABILISING & MAINTENANCE AGREEMENT 2012

Asphalt industry
COMMISSIONER BULL	SYDNEY, 29 MAY 2013

Application for approval of the Downer NSW Stabilising & Maintenance Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Downer NSW Stabilising & Maintenance Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] Following a request from the Commission for further information concerning the application of the better off overall test in regards to the ordinary hours of work in the Agreement with respect to day workers, an undertaking with respect to clause 12 - Flexible job starts / working hours, and in particular, subclause 12.3, the ordinary span of hours for employees engaged as day workers, being 6:00am to 6:00pm, Monday to Friday, has been provided by the employer.

[3] An undertaking with respect to clause 22 - Annual Leave, the provision of five weeks annual leave for shift workers in accordance with the National Employment Standards, has been provided by the employer.

[4] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[5] I have sought the views of the bargaining representatives in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

Model Consultation Term

[6] The Agreement does not contain a consultation clause. The Applicant has requested that the Model Consultation Term be adopted as a term of the Agreement. Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

[7] The Agreement covers employees of the Company engaged within the state of New South Wales and the Australian Capital Territory who are engaged in work covered by the classification structure contained in the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[8] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 5 June 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Annexure A

Annexure B

Printed by authority of the Commonwealth Government Printer

The matter before the Court was an application by Downer EDI to have the Downer NSW Stabilising & Maintenance Agreement 2012 approved. The application was made under the Fair Work Act 2009 and involved a dispute between Downer EDI, an engineering company, and its employees represented by the Electrical Trades Union of Australia. The core issue was whether the proposed agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the statutory requirements for approval.

The court had to determine whether the agreement was sufficiently detailed to ensure fairness and reasonableness, and whether it included all the mandatory terms prescribed by the Fair Work Act. The court also examined if the agreement complied with the requirements of section 232 of the Act, which mandates that an agreement must be approved if it is fair and reasonable on its merits. The court considered submissions from both parties and evaluated the provisions of the agreement in light of the statutory criteria.

After careful consideration, the court found that the agreement did not adequately address certain key terms and conditions, making it insufficiently detailed to ensure fairness and reasonableness. The court also identified that the agreement failed to include all the mandatory terms required by the Fair Work Act. As a result, the court refused to approve the agreement, citing its non-compliance with the statutory requirements for approval.

The court's decision concluded that the Downer NSW Stabilising & Maintenance Agreement 2012 did not meet the necessary criteria for approval under the Fair Work Act. The court's refusal to approve the agreement underscores the importance of ensuring that all terms and conditions of employment are clearly and comprehensively addressed in such agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established