Downer EDI Works Pty Ltd

[2023] FWCA 3070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd

(AG2023/2862)

DOWNER NSW & QLD STABILISING AND PAVEMENT REHABILITATION ENTERPRISE AGREEMENT 2022

Asphalt industry
DEPUTY PRESIDENT DEAN	CANBERRA, 21 SEPTEMBER 2023

Application for approval of the Downer NSW & QLD Stabilising and Pavement Rehabilitation Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Downer NSW & QLD Stabilising and Pavement Rehabilitation Enterprise Agreement 2022 (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 (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of 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 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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 September 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President M O'Brien, was presented with an application for the approval of the Downer NSW & QLD Stabilising and Pavement Rehabilitation Enterprise Agreement 2022. The applicant, Downer EDI Works Pty Ltd, sought the approval of this agreement under section 233 of the Fair Work Act 2009. The dispute centred around the terms and conditions of employment for employees within the stabilising and pavement rehabilitation sectors across New South Wales and Queensland.

The primary legal issue for the court was to determine whether the agreement met the "better off overall test" (BOOT) as outlined in section 232 of the Fair Work Act. This involved assessing if the employees would be better off overall with the proposed agreement compared to their previous conditions of employment. The court also needed to consider whether the agreement complied with the requirements of section 230 of the Act, ensuring that it contained necessary minimum terms and conditions.

The Deputy President examined the submissions and evidence provided by both parties, focusing on the financial implications and the overall benefits of the agreement for the employees. The court found that the agreement satisfied the BOOT, as the proposed terms and conditions would indeed be more favourable for the employees than their existing conditions. Additionally, the agreement complied with the statutory minimum terms, thereby meeting all the legal criteria for approval. Consequently, the Deputy President approved the Downer NSW & QLD Stabilising and Pavement Rehabilitation Enterprise Agreement 2022, considering it to be fair and reasonable.

As a result of this decision, the Downer NSW & QLD Stabilising and Pavement Rehabilitation Enterprise Agreement 2022 was officially approved and will now govern the employment conditions of the relevant employees in New South Wales and Queensland.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established