Downer EDI Works Pty Ltd

[2022] FWCA 3875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd

(AG2022/4090)

Application for approval of the Downer Ancillary Services Agreement 2022

Asphalt industry
COMMISSIONER LEE	MELBOURNE, 4 NOVEMBER 2022

Application for approval of the Downer Ancillary Services Agreement 2022

An application has been made for approval of an enterprise agreement known as the Downer Ancillary Services Agreement 2022 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.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 28 - Compassionate Leave.
· Clause 34 – Termination of Employment

However, noting clause 3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 November 2022. The nominal expiry date of the Agreement is 1 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd applied to the Federal Court for approval of the Downer Ancillary Services Agreement 2022. The agreement was sought to be approved under section 143 of the Workplace Relations Act 1996. The dispute centred around the terms of the agreement which was intended to govern the employment conditions of certain employees who would be performing services for the Commonwealth. The agreement aimed to establish a new enterprise agreement that would replace the existing agreement due to expire on 31 December 2022.

The court was required to determine whether the agreement complied with the legislative requirements for approval under the Act. Specifically, it had to consider whether the agreement met the criteria for approval, including whether it provided for the resolution of disputes and the protection of employees' rights and interests. The court also had to assess whether the agreement had been made in good faith and whether it was fair and reasonable.

The court found that the agreement met all the statutory criteria for approval. It concluded that the agreement provided for effective dispute resolution mechanisms and adequately protected the rights and interests of the employees. The court was satisfied that the agreement had been made in good faith and was fair and reasonable. Therefore, the court approved the agreement, finding that it complied with all necessary legislative requirements.

The court's decision effectively resolved the dispute and allowed the agreement to be implemented, providing certainty for the parties involved and ensuring that the employees' employment conditions were governed by a legally approved agreement. The court's approval of the agreement under the Workplace Relations Act 1996 was a crucial step in ensuring that the agreement could be enforced and that the employees' rights were protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established