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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CaseChat Overview and Summary

The case involved an application for approval of the Downer Ancillary Service & AWU Agreement 2018-2021. The applicant, Downer EDI Works Pty Ltd, trading as Downer, sought the approval of the agreement from the Fair Work Commission, which would ensure its enforceability. The Australian Workers' Union (AWU) was also a party to the application. The dispute centred on the terms and conditions of employment as outlined in the proposed agreement.

The primary legal issue before the court was whether the terms and conditions proposed in the Downer Ancillary Service & AWU Agreement 2018-2021 were fair and reasonable, and if they complied with the relevant provisions of the Fair Work Act 2009. The court had to assess if the agreement met the requirements for approval under the Act, including ensuring it provided for fair remuneration, conditions of employment, and any other matters specified by the regulations.

The court thoroughly examined the terms of the proposed agreement, considering the nature of the work involved and the broader economic context. The analysis included scrutiny of wage rates, leave entitlements, and other employment conditions to determine their reasonableness and fairness. The court concluded that the proposed agreement was fair and reasonable, and thus approved it under the Fair Work Act 2009. The approval was granted based on the comprehensive nature of the agreement, which provided adequate protections and benefits for the employees while also considering the operational needs of the employer.

As a result of the court's decision, the Downer Ancillary Service & AWU Agreement 2018-2021 was approved, and it became legally enforceable. This outcome provided certainty and stability for both the employer and the employees involved.

Downer EDI Works Pty Ltd T/A Downer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established