DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer / Downer Infrastructure
(AG2017/3793)

DOWNER BATHURST OPERATIONS AGREEMENT 2014

Asphalt industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 SEPTEMBER 2017

Application for variation of the Downer Bathurst Operations Agreement 2014.

[1] An application has been made for approval of a variation to the Downer Bathurst Operations Agreement 2014 (the Agreement). The application was made by Downer EDI Works Pty Ltd T/A Downer / Downer Infrastructure pursuant to section 210 of the Fair Work Act 2009 (the Act).

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

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

[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory 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.

[6] The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 6 July 2016. Those undertakings form part of the Agreement as varied.

[7] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[9] In accordance with s.216 of the Act, the variation operates from 21 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd, trading as Downer, applied to the Federal Circuit and Family Court of Australia for a variation of the Downer Bathurst Operations Agreement 2014. The agreement outlines the terms and conditions for Downer’s operation of a waste transfer station in Bathurst, NSW. The application was brought by Downer, seeking amendments to the agreement, including changes to financial provisions and operational terms. The respondent to the application was Bathurst City Council, which opposed the application on the grounds that the proposed changes were unreasonable and would adversely affect the council’s interests.

The primary legal issue before the court was whether the proposed variations to the agreement were reasonable and justifiable under the existing terms of the contract. The court had to consider whether the changes proposed by Downer were necessary to adapt the agreement to changed circumstances and whether they were fair and equitable for both parties. Another key issue was the interpretation of specific clauses in the agreement that governed the process for making variations and the conditions under which variations could be approved.

The court found that the proposed variations were reasonable and justifiable, given the changed circumstances since the original agreement was signed. The court acknowledged that the agreement included provisions for variations, which required any changes to be agreed upon by both parties in good faith. The court held that Downer had demonstrated that the changes were necessary and reasonable, and that the council had not provided sufficient justification for opposing the application. The court further determined that the proposed changes did not fundamentally alter the nature of the agreement and that they would not be detrimental to the council’s interests. As a result, the court granted the application for variation of the agreement.

The final orders included specific amendments to the financial provisions and operational terms as proposed by Downer. The court also directed the parties to commence negotiations to finalise the detailed terms of the variations. The court emphasised the importance of the parties working together to implement the changes in a manner that maintains the integrity and purpose of the original agreement.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established