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

[2021] FWCA 6145

[2021] FWCA 6145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd
(AG2021/7274)

DOWNER EDI WORKS PTY LTD SHEPPARTON DEPOT ENTERPRISE AGREEMENT 2021

Asphalt industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 7 OCTOBER 2021

Application for approval of the Downer EDI Works Pty Ltd Shepparton Depot Enterprise Agreement 2021

[1] Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd Shepparton Depot Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has requested that the Commission exercise the discretion available to it under s 586(a) of the Act to allow a correction or amendment to the proposed Agreement. The correction involves an amendment to clause 33.2(b) of the Agreement. The Employer submits that clause 33.2(b) of the Agreement incorrectly references clause 33.1(d) of the Agreement and should reference clause 33.1(a) of the Agreement.

[3] I am satisfied that it is appropriate for the Commission to exercise the discretion available to it to correct the Agreement in the manner proposed on the basis that the correction is administrative in nature only, and simply to ensure the Agreement accurately reflects what was agreed to and approved by the parties and the employees who voted to approve the Agreement.

[4] The Employer has provided a revised copy of the Agreement that contains the amended correction. It will now be published on the Commission’s website in place of the copy that was submitted to the Commission at the time the application was made.

[5] The copy of the Notice of Employee Representational Rights (NERR) provided to employees states that the Agreement is proposed to cover employees who are based at the Company’s depot in Shepparton and who are performing work in relation to asphalt, road construction and maintenance and production activities that would otherwise be covered by the Asphalt Industry Award 2020 or the Building and Construction General On-Site Award 2010. However, clause 2 of the Agreement provides that the Agreement covers employees of the Company who are based at the Company’s depot in Shepparton and who are performing work in relation to asphalt, road construction, asphalt plant maintenance and production activities. The Employer provided submissions as to this error on 22 September 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[6] Accordingly, notwithstanding the matters identified in paragraph [5] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[7] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[8] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[9] I observe that clauses 15.2, 33.5(d) and 45.4(i) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[10] The Australian Workers' Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[11] The Agreement was approved on 7 October 2021 and, in accordance with s 54, will operate from 14 October 2021. The nominal expiry date of the Agreement is 7 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513392  PR734624>

1   [2019] FWCFB 318

Annexure A