DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2019/4610)

DOWNER EDI WORKS PTY LTD SYDNEY MAINTENANCE AGREEMENT 2019

Asphalt industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 23 DECEMBER 2019

Application for approval of the Downer EDI Works Pty Ltd Sydney Maintenance Agreement 2019.

[1] Downer EDI Works Pty Ltd has applied for approval of a single enterprise agreement known as the Downer EDI Works Pty Ltd Sydney Maintenance Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether: the pre-approval requirements were met; the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers this organisation.

[7] The Agreement was approved on 23 December 2019 and, in accordance with s.54, will operate from 30 December 2019. The nominal expiry date of the Agreement is 23 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd applied to the Fair Work Commission for approval of the Downer EDI Works Pty Ltd Sydney Maintenance Agreement 2019. The applicant argued that the agreement would improve productivity, provide greater flexibility, and allow the parties to better respond to changing business needs. The Australian Manufacturing Workers' Union opposed the application, contending that the agreement would result in a deterioration of working conditions and entitlements for employees.

The Commission considered whether the agreement met the criteria for approval under the Fair Work Act. This included assessing whether the agreement provided for the terms and conditions of employment of the employees covered by the agreement and whether it was in the public interest to approve the agreement. The Commission also considered whether the agreement provided for a better outcome for employees than the applicable modern award.

The Commission found that the agreement did not provide for a better outcome for employees than the applicable modern award. The Commission noted that the agreement contained provisions that were less favourable to employees than the award, including provisions that reduced the amount of notice of termination and the availability of penalty rates. The Commission also found that the agreement did not provide for adequate protections for employees in relation to the use of contractors and outsourcing. Accordingly, the Commission refused to approve the agreement.

The Commission's decision provides guidance to employers and unions on the factors that will be considered when seeking approval of an enterprise agreement. The decision highlights the importance of ensuring that any proposed agreement provides for a better outcome for employees than the applicable modern award and that it includes adequate protections for employees. The decision also emphasises the need for employers and unions to engage in good faith bargaining when seeking to negotiate an enterprise agreement.

Downer EDI Works Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established