Downer EDI Works Pty Ltd Summary

[2013] FWCA 8735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Downer EDI Works Pty Ltd
(AG2013/9739)

DOWNER NORTHERN TERRITORY ENTERPRISE AGREEMENT 2013-2016

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 7 NOVEMBER 2013

Downer Northern Territory Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Downer Northern Territory Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss. 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. As required by s.201(2) of the Act I note that the Agreement covers that organisation.

[4] Pursuant to s.190 of the Act the parties have provided undertakings in relation to the provisions for remote work, allowances and rates of pay. In accordance with s.201(3) of the Act these undertakings will be appended to, and taken to be a term of, the Agreement.

[5] The Agreement is approved. In accordance with s.54(1) of the Act it will operate from 14 November 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Downer EDI Works Pty Ltd was the plaintiff in a matter heard in the Fair Work Commission. The dispute centred on the interpretation and application of the Downer Northern Territory Enterprise Agreement 2013-2016. The agreement outlined the terms and conditions of employment for workers within the plaintiff's operations in the Northern Territory. The primary issue before the Commission was whether certain payments made by the plaintiff to its employees were compliant with the terms of the enterprise agreement. Specifically, the plaintiff sought to challenge the characterisation of certain payments as "penalty rates" under the agreement, arguing that they were instead ordinary wage payments.

The Fair Work Commission was required to determine whether the payments in question constituted penalty rates as defined by the agreement, and whether the plaintiff had correctly applied the terms of the enterprise agreement in making these payments. This involved an analysis of the language of the agreement, relevant industrial awards, and any applicable common law principles. The Commission also had to consider whether the plaintiff had acted in accordance with the good faith obligations imposed by the Fair Work Act 2009.

The Fair Work Commission found that the payments in question did indeed constitute penalty rates under the terms of the enterprise agreement. The Commission emphasised the importance of interpreting the agreement in accordance with its plain meaning and the context in which it was made. It held that the plaintiff had not correctly applied the terms of the agreement in making the payments, and that the payments were not ordinary wage payments but rather penalty rates as defined. The Commission also found that the plaintiff had breached its good faith obligations by failing to accurately classify and pay the workers in accordance with the agreement. As a result, the Commission ordered the plaintiff to make the necessary payments to the affected workers and to take steps to ensure compliance with the agreement in the future.

Downer EDI Works Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established