Downer EDI Works Pty Ltd

[2023] FWCA 1981

[2023] FWCA 1981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd

(AG2023/1607)

DOWNER EDI WORKS SYDNEY WORKSHOP AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER MATHESON	SYDNEY, 30 JUNE 2023

Application for approval of the Downer EDI Works Sydney Workshop Agreement 2023

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

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The notification time for the Agreement is a date prior to 6 June 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force immediately prior to the commencement of the amendments.

1. Further, the Agreement was made prior to 6 June 2023 and the effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. The fourth paragraph of clause 2 of the Agreement states:

‘This Agreement will be read in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, provides a greater benefit, the NES provision will apply to the extent of the inconsistency’.

1. There is an error in that there are words missing between the second reference to ‘NES’ in the paragraph above and the word ‘provides’, and that the clause should read:

‘This Agreement will be read 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’.

1. Notwithstanding this error, I am satisfied that the intended effect of the clause is that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2023. The nominal expiry date of the Agreement is 1 July 2026

1. Pursuant to s.218A of the Act, the fourth paragraph of clause 2 of the Agreement is amended to read:

‘This Agreement will be read 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’.

COMMISSIONER

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Annexure A