Downer EDI Works Pty Ltd T/A Downer / Downer Infrastructure

[2017] FWCA 5487

[2017] FWCA 5487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 210 - Application for approval of a variation of an enterprise agreement

Downer EDI Works Pty Ltd T/A Downer / Downer Infrastructure
(AG2017/4360)

DOWNER INFRASTRUCTURE NORTHERN TERRITORY ENTERPRISE AGREEMENT 2016

Asphalt industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 24 OCTOBER 2017

Application for variation of the Downer Infrastructure Northern Territory Enterprise Agreement 2016

[1] An application has been made under section 210 of the Fair Work Act 2009 (the FW Act) for approval of a variation to an enterprise agreement known as the Downer Infrastructure Northern Territory Enterprise Agreement 2016 (the Agreement). The agreement is a single enterprise agreement. The application has been made by the employer Downer EDI Works Pty Ltd T/A Downer / Downer Infrastructure (the Applicant).

[2] The Agreement has operated since 25 October 2016. It has a nominal expiry date of 30 June 2020. It was approved by the Fair Work Commission (the Commission) on 18 October 2016. 1

[3] The application is accompanied by a statutory declaration by an officer or authorised employee of the Applicant, Ms Laura Gordon. Approval of the variation is sought by the Applicant.

[4] The application is within time. The variations were made on 20 September 2017. The application was lodged with the Commission within 14 days, on 22 September.

[5] The Applicant advances the application on the ground that the variation would bring the Agreement into compliance with the Code for the Tendering and Performance of Building Work 2016 (the Building Code).

[6] This is the second occasion since the Agreement was made that the Applicant has sought approval for a variation to the Agreement for this purpose. A variation was made on 13 June 2016 and that variation was approved by the Commission on 29 August 2017. In her decision approving that variation, Deputy President Booth noted the opposition of the Transport Workers’ Union (TWU) which had not been consulted on the variation. The Commission also noted that the TWU objection included a submission that the view of the Australian Building and Construction Commission was not (then) known to the parties or the Commission on whether the Agreement, as varied, complied with the Building Code. 2

[7] The Transport Workers’ Union (TWU) is a bargaining representative for the Agreement and is covered by it.

[8] The TWU opposed the current application on the ground that it had again not been consulted and did not participate as a bargaining representative on the vote for the variation.

[9] The variation to the Agreement concerns the following provision:

Clause 8.3: Minimum periods of engagement on weekends & public holidays

[10] The variation amends clause 8.3 to require the employer to endeavour to provide 48 hours’ notice to an employee required to work on the weekend and 24 hours’ notice during seasonal peak periods, unless there is a clear operational requirement as to why the notice period cannot be provided. It further amends the clause by adding “Nothing in this clause limits the capacity of the employer to agree with an employee(s) to work a weekend or a public holiday.”

[11] On the material before the Commission, this variation has been required as a consequence of the Australian Building and Construction Commission now advising the Applicant that clause 8.3, in its pre-varied form, does not comply with the Building Code.

[12] Pursuant to section 210(2)(c) of the FW Act and Rule 25(1) of the Fair Work Commission Rules 2013,Laura Gordon, of the Applicant, made a statutory declaration in support of the variation. No statutory declaration was lodged by the TWU as it was not a bargaining representative for the variation.

[13] The matter was listed for hearing by telephone on 24 October 2017. No additional material was filed by the Applicant nor the TWU. Ms Laura Gordon appeared for the Applicant. Mr Edward Lawrie appeared on behalf of the TWU.

[14] At the 24 October hearing the TWU submitted that it was not consulted in relation to the variation and was not involved in the voting process. While it appears the TWU were not consulted prior to the variation being made, this is not a basis on which I can refuse to approve the variation. The evidence before me is that a majority of employees affected genuinely agreed to the variation.

[15] I have considered the application and accompanying declarations in support of the application. I am satisfied that each of the requirements in sections 210 and 211 of the FW Act as relevant to this application for approval have been met. Further, there are no serious public interest grounds for not approving the variation.

[16] The variation to the Agreement is approved and will operate from 12.01am 24 October 2017.

[17] A consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

 1   [2016] FWCA 7485 per Commissioner Gregory

 2   [2017] FWCA 4482 per Deputy President Booth

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