Downer EDI Works Pty Ltd

[2016] FWCA 1453
DECISION

Fair Work Act 2009
s.185—Enterprise agreement
Downer EDI Works Pty Ltd t/a Downer Infrastructure
(AG2016/190)
DOWNER INFRASTRUCTURE PAVEMENT PRESERVATION
BUSINESS ENTERPRISE AGREEMENT 2015
Asphalt industry

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 7 MARCH 2016
Application for approval of the Downer Infrastructure Pavement Preservation Business
Enterprise Agreement 2015.
[1] An application has been made for approval of an enterprise agreement known as the

Downer Infrastructure Pavement Preservation Business Enterprise 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 Infrastructure. The agreement is
a single enterprise agreement.
[2] The Applicant has provided written undertakings. A copy of the undertakings is

attached in Annexure A. 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.
[3] Subject to the undertakings referred to above, and on the basis of the material

contained in the application and accompanying statutory declaration, 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.
[4] The application was not lodged within 14 days after the agreement was made.

Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for
making the application to the date it was actually made.
[5] 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) and based on the statutory declaration provided by the organisation, I note that
the Agreement covers the organisation.
[2016] FWCA 1453
[6] The Agreement was approved on 7 March 2016 and, in accordance with s.54, will

operate from 14 March 2016. The nominal expiry date of the Agreement is 31 December
2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

[2016] FWCA 1453

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd, trading as Downer Infrastructure, applied for the approval of the Downer Infrastructure Pavement Preservation Business Enterprise Agreement 2015, under section 185 of the Fair Work Act 2009. The application was heard by Deputy President Gostencnik in Melbourne on 7 March 2016. The agreement in question is a single enterprise agreement related to the asphalt industry.

The legal issues the court needed to address included whether the application for approval was made within the required timeframe and if the agreement met the statutory requirements of sections 186, 187, 188 and 190 of the Fair Work Act. Additionally, the court had to consider whether the Australian Workers’ Union, a bargaining representative for the agreement, had provided a valid notice under section 183 of the Act indicating its intention for the agreement to cover its members.

Deputy President Gostencnik determined that the application for approval was not lodged within the 14-day period stipulated by section 185(3)(b) of the Fair Work Act. However, the Deputy President considered it fair to extend the time for making the application to the date it was actually made, taking into account all circumstances. The Deputy President was satisfied that the written undertakings provided by the Applicant would not cause financial detriment to any employee covered by the agreement and that the undertakings would not result in substantial changes to the agreement. Furthermore, the Australian Workers’ Union had given notice under section 183 of the Act that it wanted the agreement to cover its members, and the agreement was found to cover the union. The Deputy President approved the agreement on 7 March 2016, and it will operate from 14 March 2016 with a nominal expiry date of 31 December 2018.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established