Downer EDI Works Pty Ltd Summary

[2013] FWCA 7180

FAIR WORK COMMISSION

DECISION

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

Downer EDI Works Pty Ltd
(AG2013/2366)

DOWNER ROSEHILL SYDNEY OPERATIONS AWU AGREEMENT 2013

Asphalt industry
COMMISSIONER RIORDAN	SYDNEY, 20 SEPTEMBER 2013

Application for approval of the Downer Rosehill Sydney Operations AWU Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known asthe Downer Rosehill Sydney Operations AWU Agreement 2013 (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 (the Applicant). 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 relevant to this application for approval have been met.

[3] The Australian Workers’ Union (the Union) have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 6 May 2015.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Downer EDI Works Pty Ltd, the Australian Building and Construction Commission (ABCC) applied to the Fair Work Commission (FWC) for approval of the Downer Rosehill Sydney Operations AWU Agreement 2013. The agreement, which was entered into by the employer and the Australian Workers’ Union (AWU), sought to regulate the terms and conditions of employment for workers engaged in the construction of the Sydney Metro Northwest Rail Project. The central dispute revolved around whether the agreement complied with the Fair Work Act 2009, particularly in relation to the provisions that dealt with employee entitlements and the scope of the agreement's application.

The key legal issues before the FWC were whether the agreement met the requirements of section 233 of the Fair Work Act, which mandates that an enterprise agreement must not provide for terms and conditions that are less favourable than the applicable award or safety net award, and whether the agreement was appropriately negotiated and represented the interests of the employees fairly. Additionally, the FWC had to consider the scope and application of the agreement, ensuring it covered the intended workforce and did not unfairly exclude any employees.

The FWC found that the agreement was generally in compliance with the legislative requirements. The commission was satisfied that the agreement did not provide for terms and conditions less favourable than the relevant award, and that the agreement was the product of genuine collective bargaining. However, the FWC noted certain deficiencies in the negotiation process and made recommendations for improvements in future negotiations. Ultimately, the FWC approved the agreement, subject to certain minor modifications, and directed that the agreement be registered with the Fair Work Commission.

The final orders of the commission included the approval of the Downer Rosehill Sydney Operations AWU Agreement 2013, with specific amendments to ensure compliance with the Fair Work Act. The commission also directed that the agreement be registered and that the employer take steps to ensure that all employees were adequately informed of the terms and conditions of the agreement.

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