Downer EDI Works Pty Ltd

[2016] FWCA 2124

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd t/a Downer

(AG2016/2683)

DOWNER TERALBA OPERATIONS AWU AGREEMENT 2015

Asphalt industry

COMMISSIONER ROE

MELBOURNE, 6 APRIL 2016

Application for approval of the Downer Teralba Operations AWU Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the

Downer Teralba Operations AWU Agreement 2015 (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 t/a Downer. 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] 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.
[2016] FWCA 2124

[4] The Agreement was approved on 6 April 2016 and, in accordance with s.54, will

operate from 13 April 2016. The nominal expiry date of the Agreement is 1 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Downer EDI Works Pty Ltd t/a Downer, an application was made to the Fair Work Commission for the approval of the Downer Teralba Operations AWU Agreement 2015. The application was lodged under section 185 of the Fair Work Act 2009, with the Australian Workers’ Union representing the employees. The primary issue before the court was whether the agreement met the statutory requirements for approval, including compliance with sections 186, 187, and 188 of the Fair Work Act. Specifically, the court had to determine if the agreement was fairly chosen according to section 186, particularly considering that it did not cover all employees of the employer.

The Commissioner, Roe, found that the agreement did not cover all employees but was satisfied that the group of employees involved was fairly chosen, taking into account the relevant factors in section 186(3) and (3A) of the Act. Additionally, the Commissioner noted that the Australian Workers’ Union had given notice under section 183 of the Act, indicating its desire for the agreement to cover its members, and confirmed that the agreement indeed covered the organisation as required by section 201(2). Consequently, the court approved the agreement, which will come into effect on 13 April 2016 and expire on 1 June 2018, as per section 54 of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established