Downer EDI Works Pty Ltd Summary

[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

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.

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.

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.

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’.

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’.

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.

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.

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

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.

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

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

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Downer EDI Works Pty Ltd, sought approval for the Downer EDI Works Sydney Workshop Agreement 2023, which was intended to establish the terms and conditions of employment for its employees. The applicant was represented by counsel, while the respondent, the Electrical Trades Union of Australia, was represented by an industrial advocate. The case was heard in the Fair Work Commission.

The primary legal issue before the commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the commission had to determine if the agreement provided for a fair and efficient workplace, covered a sufficient number of employees, and did not undermine the safety, health, or welfare of employees.

The commission found that the proposed agreement met the criteria for approval. It provided for a fair and efficient workplace, as it incorporated a range of protections for employees, including provisions for consultation, dispute resolution, and minimum entitlements. The agreement also covered a sufficient number of employees, as it applied to all employees of the applicant in the Sydney region. Furthermore, the commission found that the agreement did not undermine the safety, health, or welfare of employees, as it contained provisions for the protection of workers' health and safety.

The commission approved the Downer EDI Works Sydney Workshop Agreement 2023, subject to certain modifications to ensure that it complied with the Fair Work Act. The modifications related to the calculation of overtime and penalty rates and the establishment of a committee to oversee the agreement's implementation. The commission also directed the applicant to provide a copy of the approved agreement to all affected employees and to take steps to ensure that the agreement was properly implemented.

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