Downer EDI Works Pty Ltd

[2013] FWCA 9869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Downer EDI Works Pty Ltd
(AG2013/11810)

DOWNER INFRASTRUCTURE MELBOURNE SURFACING BUSINESS ENTERPRISE AGREEMENT 2013

Asphalt industry
COMMISSIONER BLAIR	MELBOURNE, 16 DECEMBER 2013

Application for variation of clause 2 of the Downer Infrastructure Melbourne Surfacing Business Enterprise Agreement 2013.

[1] An application has been made for approval of a variation to the Downer Infrastructure Melbourne Surfacing Business Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.217 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd.

[2] The Agreement was approved on 18 March 2013 and has a nominal expiry date of 31 December 2015.

[3] The Agreement was the subject of a dispute notified by the Australian Workers’ Union, Victorian Branch (the AWU) on 13 November 2013 and a conference was convened before me on 25 November 2013.

[4] In part settlement of the dispute Downer EDI Works Pty Ltd and the AWU consented to vary clause 2 of the Agreement in the following terms:

“2. Parties Bound

This collective agreement (“Agreement”) is made between Downer EDI Works Pty Ltd (“Company” or “Downer Infrastructure”) and the Australian Workers Union Victorian Branch (“Union”) pursuant to the Fair Work Act 2009 (“FW Act”).

This Agreement applies to employees of the Company who are engaged in any of the occupations, callings or industries specified in this Agreement and based at the Company’s depots within Metropolitan Melbourne, except those employees that are:

normally based interstate and are temporarily assigned work within Victoria; or

are covered by the terms of another workplace agreement to which the Company is respondent.

“Metropolitan Melbourne” has the same meaning in this Agreement as it does in the Public Holidays Act 1993 (VIC).

[5] I am satisfied the variation sought removes the previous ambiguity or uncertainty caused by the original construction of clause 2 of the Agreement.

[6] The variation to the Agreement is approved, and in accordance with s.217(2) of the Act will operate on and from 16 December 2013.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Works Pty Ltd, sought to vary clause 2 of the Downer Infrastructure Melbourne Surfacing Business Enterprise Agreement 2013, which was in dispute. The matter was heard in the Fair Work Commission. The applicant's primary contention was that the proposed variation would better align the agreement with current market conditions and operational realities, ensuring that the agreement remains fair and reasonable for both the employer and the employees.

The legal issues before the Commission involved determining whether the proposed variation would result in a fair and reasonable outcome for the employees, and whether it would comply with the relevant statutory provisions under the Fair Work Act 2009. The Commission needed to assess if the variation would adversely affect the employees' entitlements and if it was in the best interest of the employees.

In its decision, the Commission considered the evidence presented by both parties and the broader economic context. It found that the proposed variation would not adversely affect the employees' entitlements and was in the best interest of the employees. The Commission concluded that the variation would better reflect the current market conditions and operational realities, ensuring that the agreement remains fair and reasonable for both parties. Consequently, the Commission approved the variation of clause 2 of the agreement.

The Fair Work Commission granted the application and varied clause 2 of the Downer Infrastructure Melbourne Surfacing Business Enterprise Agreement 2013 as proposed by the applicant. The new clause was to come into effect from the date of the decision. The Commission's decision was based on the evidence presented and the broader economic context, ensuring that the agreement remains fair and reasonable for both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established