Downer EDI Works Pty Ltd
[2010] FWA 466
•25 JANUARY 2010
[2010] FWA 466 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
(AG2010/17)
COMMISSIONER RYAN | MELBOURNE, 25 JANUARY 2010 |
Downer EDI Works (Pipelines) Enterprise Agreement 2010.
[1] Application has been made by Downer EDI Works Pty Ltd as bargaining representative for Berry Pipelines Pty Ltd for approval of the Downer EDI (Pipelines) Enterprise Agreement 2010 as single-enterprise agreement.
[2] The agreement was made on 22nd December 2009 between the employer, Berry Pipelines Pty Ltd and its employees.
[3] The name of the agreement reflected the fact that Downer EDI Works Pty Ltd was in the process of acquiring or taking over Berry Pipelines Pty Ltd which eventually occurred on 15th January 2010. The agreement was clearly drafted and made in anticipation by both the employer and the employees of the takeover or acquisition of Berry pipelines Pty Ltd by Downer EDI Works Pty Ltd.
[4] Clause 3.1 of the agreement is as follows:
3.1 Who does the Agreement apply to?
This is an enterprise Agreement for:
Downer EDI Works Pty Ltd (“Works” or “the Company”); and
The employees of Works that are covered by the Agreement as described in sub clause 3.2.
[5] As can be seen from the terms of Clause 3.1 of the agreement made between Berry Pipelines Pty Ltd and its employees the agreement was to apply to Downer EDI Works Pty Ltd and its employees. No mention was made in Clause 3.1 .to the agreement applying to Berry pipelines Pty Ltd and its employees.
[6] Section.172(2)(a) provides that:
172(2) An employer, or two or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement;
[7] It is clear from the language of s.172(2) that it is not possible for an employer and its employees to make an agreement which would operate only in relation to another employer and its employees. Yet this is what occurred in the present matter.
[8] The agreement was made on 22nd December 2009 between the employer, Berry Pipelines Pty Ltd and its employees.
[9] The application is dismissed as the agreement is not an agreement within the meaning of s.172 of the Fair Work Act.
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