Downer EDI Works Pty Ltd

[2024] FWCA 1065

[2024] FWCA 1065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Downer EDI Works Pty Ltd

(AG2024/669)

DOWNER SOUTH AUSTRALIA ITS ENTERPRISE AGREEMENT 2023

Electrical contracting industry
COMMISSIONER CONNOLLY	MELBOURNE, 26 MARCH 2024

Application for approval of the Downer South Australia ITS Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Downer South Australia ITS Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 15 March 2024.

1. The notification time for the Agreement under s.173(2) was 22 May 2023 and the Agreement was made on 23 February 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 19 March 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Withholding monies at termination: Clause 53.2.2 appears to provide that in the case of termination, if an employee fails to give the notice specified in 53.2 the employer has the right to withhold monies due to the employee to a maximum amount equal to one week’s wages. It is noted that this clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that clause 7.2(c) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 5.2 of the Agreement acts as an effective NES precedence clause, in that it states that “This Enterprise Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 22 March 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) that responded, supported the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia”, 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 July 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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