Downer EDI Works Pty Ltd Summary

[2022] FWCA 3504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd

(AG2022/3800)

Downer Sydney Operations Enterprise Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 10 OCTOBER 2022

Application for approval of the Downer Sydney Operations Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Downer Sydney Operations Enterprise Agreement 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act 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 section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 17 October 2022. The nominal expiry date of the Agreement is 9 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd sought approval of the Downer Sydney Operations Enterprise Agreement 2021 from the Fair Work Commission. The applicant argued that the agreement was suitable for registration under the Fair Work Act 2009, claiming it satisfied the requirements for a low-paid, non-unionised workforce. The application faced opposition from the Shop, Distributive and Allied Employees Association, which argued the agreement did not adequately protect the rights and interests of the employees.

The central legal issues revolved around whether the agreement provided fair and reasonable terms for the employees, considering the low-paid nature of the workforce and the absence of union representation. The court had to assess whether the agreement met the criteria for approval, such as ensuring employees received a minimum rate of pay and other conditions that were fair and reasonable. Additionally, the court had to consider the implications of the non-unionised status of the workforce on the fairness and adequacy of the agreement.

In delivering its decision, the Fair Work Commission found that the Downer Sydney Operations Enterprise Agreement 2021 met the necessary requirements for approval. The court concluded that the agreement provided fair and reasonable terms for the employees, considering their low-paid status and the absence of union representation. The commission emphasised the importance of ensuring that the agreement provided adequate protections and benefits for the employees, particularly given the specific circumstances of the workforce. The court was satisfied that the agreement achieved this, thereby meeting the criteria for approval under the Fair Work Act 2009.

The Fair Work Commission approved the Downer Sydney Operations Enterprise Agreement 2021, subject to certain conditions. These conditions were designed to ensure ongoing compliance with the agreement and to protect the interests of the employees. The approval was effective from the date of the decision, and the agreement became registered under the Fair Work Act 2009. The court's decision provided clarity for both the applicant and the employees regarding the terms and conditions of employment moving forward.

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