Downer EDI Works Pty Ltd T/A Downer Summary

[2022] FWCA 287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer

(AG2021/8605)

Downer (Forbes/Narrandera Area) Enterprise Agreement 2019

Asphalt industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 FEBRUARY 2022

Application for variation of the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019

An application has been made for approval of a variation to the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019 (the Agreement). The application was made by Downer EDI Works Pty Ltd T/A Downer pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 15 July 2020. Those undertakings form part of the Agreement as varied.

I note that clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at 2 of the undertakings, I am satisfied that the more beneficial entitlements of the NES will prevail.

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 2 February 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Works Pty Ltd, trading as Downer, applied to the Fair Work Commission to vary the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019. The application sought changes to the agreement, which currently governs the employment of workers in the Forbes and Narrandera areas. The dispute arose from changes in business conditions, necessitating amendments to the existing agreement to maintain operational efficiency and financial viability.

The legal issues before the Commission were whether the proposed changes to the enterprise agreement were justified and whether they complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to assess whether the changes were necessary to adapt to changed circumstances, whether they were in the interests of the employees, and whether they were consistent with relevant awards and the National Employment Standards.

The Commission considered the evidence presented by Downer regarding the changed circumstances, including financial pressures, operational challenges, and the need for flexibility in workforce management. The applicant argued that the proposed changes were essential for the business to remain competitive and viable. The Commission also took into account submissions from the union, which represented the employees, who opposed the changes, arguing that they would negatively impact the employees' working conditions and job security. After weighing the evidence and submissions, the Commission determined that the changes were necessary and reasonable under the circumstances. The Commission found that the proposed variations were in the interests of the employees and compliant with the Fair Work Act. The Commission granted the application and varied the enterprise agreement as sought by Downer.

The final orders included specific amendments to the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019, reflecting the changes requested by Downer. The varied agreement now includes provisions that address the changed business conditions while ensuring that the employees' rights and protections are maintained to the greatest extent possible.

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