Downer Edi Works Pty Ltd T/A Downer Edi Works Pty Ltd

[2023] FWCA 663

[2023] FWCA 663

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 Edi Works Pty Ltd

(AG2023/233)

Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 1 MARCH 2023

Application for approval of the Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer Edi Works Pty Ltd T/A Downer Edi Works Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 16 February 2023.

1. On 20 February 20223, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

Undertaking

1. The Applicant has submitted an undertaking in the required form dated 24 February 2023 The undertaking deals with the following topics:

·   Clause 14.4 of the Agreement will operate subject to s.324 and s.326 of the Act and deductions for failure to provide notice for employees who are 18 or more shall be limited to a maximum of one week.

·   Despite Clause 8.3(a) casual employees will have a minimum engagement of 4 hours.

·   Prior to employment of part time employees, the employer and employee will agree in writing the days and hours of work and the starting and finishing times. Part time employees who work in excess or outside the agreed hours will be paid overtime rates.

·   Where an employee works between 5am and 6am, the time worked will be treated as ordinary hours but paid at overtime rates.

·   Persons who work an afternoon shift as defined in the Building and Construction General On-Site Award 2020 (the Award), or works on the Saturday following Good Friday, or works overtime, as will be paid not less that the amount payable under that Award plus $10.00

·   Employees who work shift work for less than 5 successive shifts will be paid overtime rates.

·   Clause 16.1 shall not apply.

·   Employees who work overtime for at least 1.5 hours after working ordinary hours will be paid an overtime meal allowance of $16.37.

·   If an employee is requested by the employer to temporarily perform higher duties for more than 2 hours per day, they will be paid at the higher rate for the whole day.

1. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The “The Australian Workers’ Union”, 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) of the Act I note that the Agreement covers this organisation.

Approval

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 February 2024.

COMMISSIONER

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