Downer EDI Works Pty Ltd

[2017] FWCA 4789

[2017] FWCA 4789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

Downer EDI Works Pty Ltd
(AG2017/3404)

DOWNER COUNTRY VICTORIA BUSINESS ENTERPRISE AGREEMENT 2015

Asphalt industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 OCTOBER 2017

Application for variation of the Downer Country Victoria Business Enterprise Agreement 2015.

[1] An application has been made by Downer EDI Works Pty Ltd (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’), for approval of variations to a single enterprise agreement known as the Downer Country Victoria Business Enterprise Agreement 2015 (‘the Agreement’), which was approved by the Fair Work Commission (the ‘Commission’); see: Downer EDI Works Pty Ltd [2015] FWCA 3611 on 28 May 2015. The Agreement covers 31 employees of the Company who are in the occupations, callings or industries specified in the Agreement and who are based at the Company depots at Wodonga, Shepparton and Carisbrook, Victoria.

[2] In the Employer’s Declaration in support of the application (Form F23A), Ms L Gordon, Industrial Relations Manager advised that multiple copies of the varied Agreement, were displayed and made available to all employees. Ms Gordon also said that a memo was sent to each employee which included the proposed clauses with the changes highlighted. She said that follow up calls were made to any employees who had had no face to face contact with the Company or had not attended information sessions held in July 2017. In a secret ballot conducted on 1 August 2017, 17 of the 19 employees who cast a valid vote, agreed to approve the proposed variations to the Agreement (ss 207, 208 and 209). I am satisfied that the employees have genuinely agreed to the variations (s 211(3)(c)). The application was lodged on 10 August 2017, thereby satisfying s 210(3)(a) of the Act.

[3] The effect of the variation is to remove and/or amend clauses within the Agreement that do not meet the requirements of Section 11 of the Code for the Tendering and Performance of Building Work 2016. Ms Gordon said that the variation does not result in any terms of the Agreement becoming more or less beneficial than they were before the Agreement was varied. A copy of the variations to the Agreement is attached to this Decision and marked ‘Annexure A’.

[4] At a hearing of the application on 24 August 2017, Ms Gordon appeared for the applicant and Mr D Cameron appeared for the Australian Workers’ Union – Victorian Branch. Although the notice of listing had been served on the Union, Mr Cameron advised that he had not received it. In any event, he was content to proceed with, and participate in the hearing. During the hearing, an issue arose as to whether the Union intended to oppose the application. However, after considering the circumstances of the application, not least the overwhelming majority of employees who voted in support of the variations, Mr Cameron advised that the Union did not object to the application being approved.

[5] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[6] Having reviewed the pre-approval process documentation, the proposed variations and the Agreement as varied, I am satisfied that all of the requirements of the Act, in particular, ss 207, 208, 209, 210 and 211, in so far as relevant to this application, have been met. Specifically, I am satisfied that the Commission would have been required to approve the Agreement, as varied, had an application been made to approve it in accordance with s 185 of the Act; that there are no serious public interest grounds for not approving the variations and that the variations do not specify a nominal expiry date of more than four years after the day on which the Commission approved the Agreement. Accordingly, I approve the proposed variations to the Downer Country Victoria Business Enterprise Agreement 2015. A copy of the Agreement, as varied, will accompany the publication of this Decision. Pursuant to s 216 of the Act, the variation shall take effect on and from 24 August 2017 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

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Annexure A