Downer EDI Works Pty Ltd T/A Downer

[2019] FWCA 5845

[2019] FWCA 5845

FAIR WORK COMMISSION

DECISION

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

Downer EDI Works Pty Ltd T/A Downer
(AG2019/2099)

DOWNER ANCILLARY SERVICE & AWU AGREEMENT 2018 - 2021

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 22 AUGUST 2019

Application for approval of the Downer Ancillary Service & AWU Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Downer Ancillary Service & AWU Agreement 2018-2021 (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 Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 34.1 – Serious Misconduct

•  Clause 34.3 – Abandonment of Employment

•  Clause 35 – Redundancy Pay

[6] However, noting clause 3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from29 August 2019. The nominal expiry date of the Agreement is 1 July 2021.

COMMISSIONER

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