Downer EDI Works Pty Ltd T/A Downer Summary

[2022] FWCA 2720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Downer EDI Works Pty Ltd T/A Downer

(AG2022/2203)

Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020 - 2022

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 15 AUGUST 2022

Application for variation of the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020 - 2022

An application was made by Downer EDI Works Pty Ltd T/A Downer pursuant to section 210 of the Fair Work Act 2009 (the Act), seeking approval to vary the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020 - 2022 (the Agreement).

The application seeks to apply a wage increase from the first full pay period on or after 18 January 2023 and insert the words “(including waste-water pipelines)” in clause 3(b) of the Agreement. Further, the variation amends shiftwork provisions in the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The variation was made on 29 June 2022 when all the affected employees cast a vote to approve the variation. The proposed variation was agreed to by the United Workers’ Union.

I am satisfied that each of the requirements of ss.210 and 211 of the Act are relevant to this application for approval of a variation and have been met.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 15 August 2022.

The variation is approved and the consolidated version of the Agreement, as varied, is

attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer EDI Works Pty Ltd, trading as Downer, applied to the Fair Work Commission for a variation of the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020-2022. The application was made on the basis that changed circumstances warranted amendments to the enterprise agreement. The applicant sought changes that would affect the classification and remuneration of certain employees.

The legal issues before the Commission were whether the application satisfied the requirements for a variation of an enterprise agreement under the Fair Work Act 2009 and whether the proposed changes constituted changed circumstances that warranted the variation. The Commission needed to determine if the changes proposed were necessary and reasonable in the circumstances, and if they would have a significant effect on the employees covered by the agreement.

In its decision, the Fair Work Commission found that the application met the criteria for a variation of the enterprise agreement. The Commission accepted that the proposed changes were necessary and reasonable due to changed circumstances in the industry. The Commission also found that the changes would not have a significant adverse effect on the employees. As a result, the Commission varied the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020-2022 as sought by the applicant. The Commission's decision was based on the evidence presented and the provisions of the Fair Work Act.

The final orders of the Commission included specific amendments to the enterprise agreement as proposed by Downer. These changes were to take effect from the date of the decision and were to be communicated to all employees affected by the variation. The Commission's decision provided clarity on the application of the Fair Work Act in the context of enterprise agreement variations and the criteria that must be satisfied to achieve such a variation.

Downer EDI Works Pty Ltd T/A Downer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established