Downer EDI Works

[2013] FWCA 3399

[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

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