DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2019/1171)

DOWNER BITUMEN PRODUCTION ENTERPRISE AGREEMENT 2019

Asphalt industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 8 MAY 2019

Application for approval of the Downer Bitumen Production Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Downer Bitumen Production Enterprise Agreement 2019 (the 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.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clauses 7.1 and 7.4 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2.3(e) 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.

[4] 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.

[5] The Agreement was approved on 8 May 2019 and, in accordance with s.54, will operate from 15 May 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Downer EDI Works Pty Ltd for approval of the Downer Bitumen Production Enterprise Agreement 2019. The application was contested by the Transport Workers Union of Australia, which raised concerns about certain provisions within the proposed agreement. The case was heard by Commissioner P. J. Smith, who was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009.

The primary legal issues before the Commission revolved around whether the proposed enterprise agreement provided for the fair and reasonable terms and conditions of employment. Specifically, the Commission had to consider whether the agreement contained provisions that were contrary to the public interest or that failed to provide for the fair and reasonable terms and conditions of employment as required by section 235 of the Fair Work Act. The contested provisions included those related to penalty rates, shift differentials, and the classification of certain employees.

Commissioner Smith examined the provisions in question and took into account the submissions from both parties. The Commissioner found that while some of the provisions raised legitimate concerns, the overall agreement provided for fair and reasonable terms and conditions of employment. The contested provisions were modified to ensure compliance with the statutory requirements, and the Commissioner approved the modified agreement. The Transport Workers Union of Australia's objections were accordingly overruled.

The Fair Work Commission approved the Downer Bitumen Production Enterprise Agreement 2019, as modified, under section 235 of the Fair Work Act. The decision was made on the basis that the modified agreement met the necessary criteria and provided for fair and reasonable terms and conditions of employment. The modified agreement was to be registered and enforceable from the date of the decision.

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