DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2018/7281)

DOWNER EDI WORKS PTY LTD SOUTH AUSTRALIAN ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 9 AUGUST 2019

Application for approval of the Downer EDI Works Pty Ltd South Australian Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd South Australian Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 July 2019.

[3] On 17 July 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

Undertaking

[4] The Applicant has submitted an undertaking in the required form dated 8 August 2019. The undertaking deals with the following topics:

• Amending the hourly rate for Technician Level 1 to $24.46 per hour.

• Providing adult apprentices for years 1 to 3 an hourly rate of pay of 2% higher than the base rate plus allowances applicable under the Manufacturing and Associated Industries and Occupations Award 2010 or the Building and Construction General On-site Award 2010.

• Providing existing employees who become adult apprentices will retain their hourly rate payable immediately before commencing the adult apprenticeship, subject to varying qualifying periods of service, until such time as the adult apprentice rate becomes higher.

• Providing a definition of ‘adult apprentice’.

• Providing casual employees who, but for the Agreement, would be covered by the Asphalt Industry Award 2010 or the Manufacturing and Associated Industries and Occupations Award 2010, with overtime, weekend and public holidays rates of no less than as provided by the awards.

• Providing casual employees with a minimum of four hours’ pay per engagement.

• Providing that no more than eight ordinary hours shall be worked in any one day.

• Providing junior employees with an hourly rate of 2% higher than the base rate plus applicable allowances that would be paid under the applicable award.

• Providing that no junior employees will be required to perform work in a foundry.

• Providing that employees required to work on a gazetted public holiday have a right to elect to receive payment at double time and a half, or at time and a half and accrue an equal amount of time off during normal working hours in lieu (TOIL). Accrued TOIL is to be paid out at the employee’s ordinary rate upon termination.

• Providing employees who, but for the Agreement, would be covered by the Asphalt Industry Award 2010, with annual leave loading at the higher of the Award or Agreement rate.

• Providing employees who would normally be rostered to shift work during a period of annual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCA 5556
Decision Date: 9 AUGUST 2019

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Downer EDI Works Pty Ltd South Australian Enterprise Agreement 2018. This enterprise agreement was proposed between Downer EDI Works Pty Ltd, an engineering and construction company, and its employees in South Australia. The dispute centred on whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining the application for the enterprise agreement's approval.

The legal issues that the Fair Work Commission had to decide included whether the agreement complied with the statutory requirements, such as whether it had been made in good faith, and whether it contained the necessary minimum entitlements for employees. Additionally, the Commission had to ensure that the agreement was not contrary to public policy and that it had been properly negotiated. The Commission also needed to assess whether the agreement provided for a fair and efficient workplace, taking into account the interests of both the employer and the employees.

In reaching its decision, the Fair Work Commission examined the proposed agreement and the evidence presented by both parties. The Commission considered the negotiation process, the fairness of the terms, and whether the agreement met the minimum standards set by the Fair Work Act. The Commission found that the agreement was made in good faith, contained the necessary minimum entitlements, and was not contrary to public policy. It was also satisfied that the agreement provided for a fair and efficient workplace. Based on these findings, the Commission approved the Downer EDI Works Pty Ltd South Australian Enterprise Agreement 2018.

The Fair Work Commission's final orders included the approval of the enterprise agreement, which would now be binding on the parties involved. This decision ensured that the employees of Downer EDI Works Pty Ltd would be covered by the terms of the agreement, providing them with certainty regarding their employment conditions. The approval also facilitated a streamlined industrial relations environment, allowing the company to operate more efficiently while maintaining fair treatment of its workforce.

Orders