DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd
(AG2020/980)

DOWNER WATER & PIPELINES REHABILITATION ENTERPRISE AGREEMENT 2020 - 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 1 MAY 2020

Application for approval of the Downer Water &Pipelines Rehabilitation Enterprise Agreement 2020 - 2022.

[1] An application has been made for the approval of an enterprise agreement known as the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Downer EDI Works Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Downer EDI Works Pty Ltd, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen.

[3] Downer EDI Works Pty Ltd has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is taken to be a term of the Agreement.

[4] Subject to the undertaking 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 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] I note that Clauses 7.5(h) and 10.8(i) are inconsistent with the National Employment Standards (NES). However, given the NES precedence clause at Clause 3.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54, will operate from 8 May 2020. The nominal expiry date of the Agreement is 9 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd, trading as Downer EDI Works Pty Ltd, applied to the Fair Work Commission for approval of the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020-2022. The applicant, Downer EDI Works Pty Ltd, sought approval of the proposed enterprise agreement under section 233 of the Fair Work Act 2009. The applicant’s employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application on the grounds that the proposed agreement did not meet the requirements of the Act.

The key legal issues before the Commission were whether the proposed agreement met the procedural and substantive requirements of the Fair Work Act. Procedurally, the Commission needed to determine if the agreement was made in accordance with the relevant provisions of the Act, including whether it was made through proper bargaining processes. Substantively, the Commission had to assess if the agreement provided for fair and reasonable terms and conditions of employment, including remuneration and other benefits.

The Commission found that the proposed agreement complied with the procedural requirements of the Fair Work Act. It was determined that the agreement was the product of genuine and meaningful bargaining between the parties, and that the process was fair and transparent. On the substantive front, the Commission examined the terms and conditions of the proposed agreement. It considered factors such as the nature of the work, the industry standards, and the parties' bargaining positions. The Commission concluded that the proposed agreement provided for fair and reasonable terms and conditions of employment, and thus met the substantive requirements of the Act.

Accordingly, the Fair Work Commission approved the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2020-2022. The Commission issued a certificate of registration for the agreement, which will now be binding on the parties and their employees. This decision provides clarity and certainty for both the applicant and the employees covered by the agreement.

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

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established