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

[2020] FWCA 2297

[2020] FWCA 2297

FAIR WORK COMMISSION

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

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Annexure A