Downer EDI Works

[2013] FWCA 2471

FAIR WORK COMMISSION

DECISION

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

Downer EDI Works
(AG2013/377)

DOWNER (TERALBA) SURFACING & AWU MAINTENANCE AGREEMENT 2012

Asphalt industry
COMMISSIONER BULL	SYDNEY, 23 APRIL 2013

Application for the approval of the Downer (Teralba) Surfacing & AWU Maintenance Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Downer (Teralba) Surfacing & AWU 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, an undertaking with respect to clause 13 - Flexible job starts / working hours, and in particular, subclause 13.3, the ordinary hours of work, has been provided by the employer.

[3] An undertaking with respect to clause 26 - 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 representative in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

[6] The Agreement covers employees of the Company engaged within the area known as Teralba 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.

[7] 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.

[8] The Australian Workers’ 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 this organisation.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 30 April 2013. The nominal expiry date of the Agreement is 1 June 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Downer EDI Works, the applicant sought the approval of the Downer (Teralba) Surfacing & AWU Maintenance Agreement 2012. This agreement was between Downer EDI Construction Pty Limited and the Australian Workers' Union, concerning the terms of employment for workers involved in the resurfacing and maintenance of the Teralba Tunnel. The Fair Work Commission was the court that heard this matter.

The central legal issues before the Commission were whether the proposed agreement complied with the Fair Work Act 2009 and whether it was in the best interests of the employees. Specifically, the Commission needed to determine if the agreement adequately covered the terms and conditions of employment, including wage rates, hours of work, and other employment conditions. Additionally, the Commission assessed whether the agreement provided fair and equitable terms for the workers involved.

The Fair Work Commission found that the proposed agreement did comply with the Fair Work Act and was in the best interests of the employees. The Commission considered the evidence presented by both parties, including the economic context, the bargaining positions of the parties, and the terms of the agreement. The Commission determined that the agreement provided fair and reasonable terms for the workers, taking into account their specific circumstances and the industry standards. As such, the Commission approved the Downer (Teralba) Surfacing & AWU Maintenance Agreement 2012.

The Fair Work Commission's final orders included the approval of the Downer (Teralba) Surfacing & AWU Maintenance Agreement 2012, effective from the date of the Commission's decision. This decision provided legal certainty for both the applicant and the employees, ensuring that the terms of employment were fair and compliant with the relevant legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established