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

[2024] FWCA 3656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2024/3342)

DOWNER HUME ACT / CFMEU AGREEMENT 2024

Asphalt industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 OCTOBER 2024

Application for approval of the Downer Hume ACT/CFMEU Agreement 2024

An application has been made for approval of an enterprise agreement known as the Downer Hume ACT/CFMEU Agreement 2024 (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 T/A Downer Edi Works Pty Ltd. The Agreement is a single enterprise agreement.

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

Subject to the undertakings referred to above, 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.

I note that Clause 7.8.2 may be inconsistent with the National Employment Standards as Clause 7.8.2 allows the substitution of public holidays by majority agreement, which may have the effect of removing an employee’s entitlement under s.114 of the Act to absence on a public holiday. Given the National Employment Standards precedence clause at clause 3.2.2 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Construction, Forestry and Maritime Employees Union (CFMEU) 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2024. The nominal expiry date of the Agreement is 20 October 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Downer Edi Works Pty Ltd, the Fair Work Commission was tasked with approving a workplace agreement between Downer Hume and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The applicant, Downer Edi Works Pty Ltd, sought approval of the Downer Hume ACT/CFMEU Agreement 2024. This agreement was aimed at regulating the terms and conditions of employment for employees in the ACT region.

The primary legal issue before the Commission was whether the agreement met the statutory requirements set forth in the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was "registered" or "approved" under the legislation. To be approved, the agreement had to be assessed against various criteria, including ensuring it was not less favourable than the applicable award or registered agreement, and did not contravene any provisions of the Fair Work Act.

After thorough consideration of the application, the Fair Work Commission found that the Downer Hume ACT/CFMEU Agreement 2024 satisfied all the necessary legal requirements. The agreement was deemed to be fair and reasonable, providing a balance between the interests of the employer and the employees. The Commission approved the agreement, recognising its compliance with the legislative framework and its capacity to deliver a fair outcome for all parties involved.

Consequently, the Commission issued an order approving the Downer Hume ACT/CFMEU Agreement 2024, effective from the date of the decision. This approval authorises the agreement to be in force, ensuring the terms and conditions outlined within it govern the employment relationship between Downer Hume and its employees under the CFMEU in the ACT region.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established