Downer EDI Works Pty Ltd Summary

[2024] FWCA 33

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd

(AG2023/5146)

DOWNER EDI WORKS PTY LTD QUEENSLAND ENTERPRISE AGREEMENT 2023

Asphalt industry
COMMISSIONER ALLISON	MELBOURNE, 8 JANUARY 2024

Application for approval of the Downer EDI Works Pty Ltd Queensland Enterprise Agreement 2023

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

On 20 December 2023, my Chambers issued correspondence to the parties raising issues in relation to the Agreement. These issues were:

Clauses 4.1 and 8.9 of the Agreement provided for the employment of apprentice and trainee employees, but the Agreement is otherwise silent on the rates of pay for apprentices and trainees. I sought submissions and/or undertakings from the Employer regarding whether it ordinarily engages apprentices and trainees and if so, how they can be considered better off overall under the Agreement.

The application Form F16 listed the Australian Workers’ Union (AWU) as a bargaining representative for the Agreement, but the AWU had not submitted a Form F18 indicating it wished to be covered by the Agreement. Accordingly, I sought a completed Form F18 from the AWU.

On 22 December 2023, the Employer provided a written undertaking in relation to apprentices and trainees. The undertaking is to the effect that apprentices and trainees will be paid a base rate of pay equal to 1% more than the base rate of pay for their classification under the applicable Modern Award.
A copy of the undertaking is attached in Annexure A. 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. The undertaking is taken to be a term of the agreement.

On 3 January 2024, the AWU replied to Chambers, advising that it did not wish to be heard with respect to matters relating to the approval of the Agreement, and that it did not seek to be covered by the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 January 2024. The nominal expiry date of the Agreement is 15 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd, a construction and engineering company, sought approval of its Queensland Enterprise Agreement 2023. The application was brought before the Fair Work Commission, which is tasked with overseeing and approving enterprise agreements under the Fair Work Act 2009. The agreement was to be applied to various employees within the company, including those who were part of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute involved the terms and conditions of employment, including wages, working hours, and other employment-related benefits, as outlined in the proposed agreement.

The primary legal issue before the court was whether the proposed enterprise agreement met the necessary criteria for approval as stipulated by the Fair Work Act 2009. This involved ensuring the agreement complied with provisions regarding the avoidance of underpayments, the protection of employees' rights, and the maintenance of fair and reasonable terms. The court had to examine whether the agreement provided adequate protections and benefits to employees and whether it adhered to the statutory requirements for enterprise agreements. Additionally, the court assessed whether the agreement was made in good faith and whether it was free from any coercive practices.

In delivering its decision, the Fair Work Commission considered the provisions of the proposed agreement, along with submissions from both Downer EDI Works Pty Ltd and the CFMEU. The Commission found that the agreement contained terms and conditions that were fair and reasonable, met the statutory requirements, and provided adequate protections for employees. The agreement was deemed to be made in good faith and free from any coercive practices. Consequently, the Commission approved the application for the Downer EDI Works Pty Ltd Queensland Enterprise Agreement 2023. The approval ensures that the terms of the agreement will govern the employment conditions of the relevant employees, effective from the date of approval.

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