Downer EDI Works Pty Ltd T/A Downer

[2022] FWCA 1535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer

(AG2022/1221)

Downer Bitumen Production Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MOLTONI	BRISBANE, 6 MAY 2022

Application for approval of the Downer Bitumen Production Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Downer Bitumen Production Enterprise Agreement 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 (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 2.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union (AWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of Agreement is 31 December 2024.

DEPUTY PRESIDENT

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 the approval of the Downer Bitumen Production Enterprise Agreement 2021. The dispute involved the proposed enterprise agreement's terms and conditions for bitumen production employees. The matter was heard by the Fair Work Commission, which needed to determine whether the agreement met the requirements under the Fair Work Act 2009.

The primary legal issues the Commission considered were whether the agreement provided for minimum rates of pay and conditions as stipulated by the Act, whether it allowed for appropriate flexibility and fairness in the workplace, and whether it adhered to the principles of good faith bargaining. The Commission also needed to assess if the agreement had been made in good faith and if it contained appropriate dispute resolution mechanisms.

The Fair Work Commission found that the proposed agreement met the statutory requirements and was fair and reasonable. The Commission acknowledged the parties' negotiation process and the inclusion of essential terms and conditions. It determined that the agreement provided for minimum rates of pay and conditions and allowed for necessary flexibility in the bitumen production industry. The Commission concluded that the agreement had been made in good faith and contained appropriate dispute resolution mechanisms.

As a result, the Fair Work Commission approved the Downer Bitumen Production Enterprise Agreement 2021. The agreement is now legally binding on the parties involved and will govern the terms and conditions of employment for bitumen production employees under the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established