Downer EDI Works Pty Ltd

[2021] FWCA 6676

[2021] FWCA 6676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2021/7862)

DOWNER TRAFFIC MANAGEMENT ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 12 NOVEMBER 2021

Application for approval of the Downer Traffic Management Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Downer Traffic Management Enterprise Agreement 2021 (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.

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, voting eligibility and whether the agreement passes the better off overall test. Further information was provided in relation to those concerns. A hearing was also held on 10 November 2021.

[3] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] Clause 6.2(c) of the Agreement makes provision for deductions which, in my view, may not be permitted deductions within the meaning of s.324 of the Act and, pursuant to s.326 of the Act, is likely to have no effect to the extent that the deductions are not permitted. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A of this decision (Undertaking). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertaking. The bargaining representatives did not oppose the Undertaking. I am satisfied that the effect of accepting the Undertaking is not likely to:

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

(b) result in substantial changes to the Agreement.

[6] Pursuant to s.190(3) of the Act, I accept the Undertaking.

[7] Subject to the Undertaking, 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2021. The nominal expiry date of the Agreement is four years from the date of approval.

COMMISSIONER

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Annexure A