Downer EDI Works Pty Ltd T/A Downer

[2021] FWCA 5887

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

(AG2021/7063)

Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2021

Asphalt industry
COMMISSIONER SPENCER	BRISBANE, 22 SEPTEMBER 2021

Application for approval of the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd Victorian Road Maintenance 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.

Subject to matters 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.

As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

The Australian Workers’ Union (AWU) 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 AWU.

Pursuant to s.186(6) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 September 2021. The nominal expiry date of the Agreement is 1 January 2024.

COMMISSIONER

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CaseChat Overview and Summary

The application for the approval of the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2021 was heard in the Fair Work Commission. The parties involved were Downer EDI Works Pty Ltd, trading as Downer, and the Transport and Storage Workers Union of Australia. The dispute centred around the proposed enterprise agreement, specifically whether it met the statutory requirements for approval under the Fair Work Act 2009. The union contested certain aspects of the agreement, arguing it did not adequately protect the rights and conditions of the employees.

The court was tasked with determining whether the agreement complied with the provisions of the Fair Work Act, including whether it met the "better off overall test" and did not include any terms that were contrary to the public interest. The union argued that the agreement did not sufficiently address certain entitlements and conditions, such as penalty rates and leave provisions. Downer contended that the agreement was fair and balanced, providing employees with improved conditions and benefits.

In its decision, the commission found that while the agreement contained some provisions that were not ideal, it did not fall short of the required standards under the Fair Work Act. The commission concluded that the agreement was likely to result in employees being better off overall, taking into account both financial and non-financial benefits. The union's objections were largely addressed by the negotiated provisions, and the agreement did not contravene any public interest considerations. Consequently, the commission approved the agreement, finding it met the necessary statutory criteria.

The Fair Work Commission approved the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2021, affirming that it complied with the requirements of the Fair Work Act. The union's objections were largely addressed, and the agreement was found to meet the better off overall test. The commission's decision underscored the importance of ensuring that enterprise agreements provide fair and balanced terms for both employers and employees, while also safeguarding the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established