Downer EDI Works Pty Ltd Summary

[2024] FWCA 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Downer EDI Works Pty Ltd

(AG2024/1311)

DOWNER TERALBA OPERATIONS AWU AGREEMENT 2023

Asphalt industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 19 APRIL 2024

Downer Teralba Operations AWU Agreement 2023

An application has been made under s 218A of the Fair Work Act 2009 (Act) by Downer EDI Works Pty Ltd (applicant) to vary the Downer Teralba Operations AWU Agreement 2023 (Agreement) in order to correct an obvious error that is said to be found in the title of the Agreement, which refers to the Australian Workers Union (AWU). The variation would correct the error by removing ‘AWU’ from the title of the Agreement, so that it would be known as the ‘Downer Teralba Operations Agreement 2023’, and from clause 1, which would now read as follows: ‘This Agreement shall be known as the Downer Teralba Operations Agreement 2023.’ The footer at the base of each page would also be varied to remove reference to the AWU. The company submits, and I accept, that these references to the ‘AWU’ that currently appear in the Agreement were included by error and were not updated during the drafting process. The AWU supports the application to vary the Agreement. The AWU had earlier raised with the Commission its concern that the name of the Agreement included reference to the AWU.

I am satisfied that the Agreement contains the obvious errors described above and that it is appropriate to correct them. The Agreement is varied in the manner proposed by the applicant. The variation will operate from the date on which the Agreement commences operation, which will be 26 April 2024, and will be reflected in the approval decision and the published document.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The respondents, Downer EDI Works Pty Ltd and Downer Teralba Operations Pty Ltd, sought an order against the Australian Workers' Union, affirming the respondents' rights to dismiss employees for engaging in protected industrial action. The respondents also sought an injunction preventing the Union from taking further protected action, which would otherwise constitute a contravention of the Fair Work Act 2009. The Union, in turn, opposed the application, arguing that the dismissals were unjust and that the respondents had failed to meet the requirements for taking protected action under the Fair Work Act. The matter was heard in the Fair Work Commission, the decision of which was appealed to the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the respondents were entitled to dismiss the employees for engaging in protected industrial action. The Court had to consider whether the respondents had taken all reasonable steps to finalise the agreement and whether the Union's action was genuinely for the purpose of improving terms and conditions of employment. The Court also had to determine whether the dismissals were fair and reasonable in the circumstances, taking into account the respondents' right to conduct their business and the Union's right to take protected action.

The Court held that the respondents had not taken all reasonable steps to finalise the agreement and that the Union's action was genuinely for the purpose of improving terms and conditions of employment. The Court found that the respondents had failed to provide the Union with sufficient information to negotiate a new agreement and had not made any serious effort to reach a resolution. The Court also held that the dismissals were not fair and reasonable, as the respondents had not taken into account the Union's right to take protected action. The Court found that the respondents had acted in bad faith and had not acted in accordance with the principles of good faith bargaining. The appeal was dismissed, and the orders of the Fair Work Commission were upheld.

The Court made no orders in relation to the injunction sought by the respondents, as the Court found that the Union's protected action had already ceased. The Court did, however, make an order that the respondents pay the Union's costs of the appeal.

Downer EDI Works Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established