DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd
(AG2020/1141)

DOWNER (FORBES/NARRANDERA AREA) ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 JULY 2020

Application for approval of the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019.

[1] An application has been made for the approval of an enterprise agreement to be known as the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Downer EDI Works Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Australian Workers’ Union (AWU) raised concerns with the Commission in relation to the better off overall test. In response to those concerns, the Employer proffered the undertakings set out at Annexure A to this decision dated 30 June 2020. The AWU was given until 1 July 2020 to object to these undertakings, or raise any other concerns it had as to the approval of the Agreement. No such objections or other concerns were raised.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Asphalt Industry Award 2010 and Building and Construction General Onsite Award 2010 respectively), and that the undertakings will not result in substantial changes to the Agreement. The undertakings become terms of the Agreement.

[4] Subject to the undertakings referred to above, 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.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 July 2020. The nominal expiry date of the Agreement is 15 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd, the Fair Work Commission was tasked with considering an application for the approval of a specific enterprise agreement, the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019. This agreement was proposed between the applicant, Downer EDI Works Pty Ltd, and the employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the terms and conditions of employment set out in the proposed agreement and whether they met the requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved determining whether the agreement complied with the statutory criteria for approval. These included assessing whether the agreement provided for the proper operation of the business, whether it contained terms that were not contrary to public policy, and whether it met the good faith bargaining requirements. Additionally, the Commission had to examine the provisions regarding wages, conditions, and other terms and conditions to ensure they aligned with the provisions of the Fair Work Act. The Commission was also required to consider submissions from the parties and any other relevant evidence provided.

After thorough consideration of the submissions and evidence, the Fair Work Commission concluded that the proposed agreement met the statutory criteria for approval. The Commission found that the agreement provided for the proper operation of the business, contained terms that were not contrary to public policy, and was the product of good faith bargaining. Furthermore, the Commission determined that the agreement's terms and conditions were fair and reasonable, providing an appropriate balance of rights and obligations between the employer and the employees. As a result, the Commission approved the Downer (Forbes/Narrandera Area) Enterprise Agreement 2019, with the approval taking effect from the specified commencement date.

In light of the approval, the Fair Work Commission issued orders confirming the terms of the agreement, including the effective date and the process for any future variations or terminations. The orders ensured that the agreement would be binding on the parties and that any disputes arising from its implementation would be subject to the relevant provisions of the Fair Work Act. This decision provides clarity for both the employer and the employees regarding the terms and conditions of employment under the approved agreement.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established