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

Case •

[2024] FWCA 3372

•

25 SEPTEMBER 2024
[2024] FWCA 3372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2024/3111)

DOWNER EDI WORKS PTY LTD SYDNEY MAINTENANCE AGREEMENT 2024

Asphalt industry

DEPUTY PRESIDENT GRAYSON

SYDNEY, 25 SEPTEMBER 2024

Application for approval of the Downer EDI Works Pty Ltd Sydney Maintenance Agreement 2024

Introduction

  1. 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 Sydney Maintenance Agreement 2024 the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

  1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 14 November 2023 and the Agreement was made on 1 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

National Employment Standards (NES) Precedence Term

  1. Clause 30 provides for compassionate leave. However, the clause is silent in relation to an employee’s entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with the NES as per s.104(1)(c) of the Act.

  1. Clause 36(f) provides that if an employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice required that was not provided by the employee. Clause 36(f) does not appear to limit the source of the monies which deductions may be made from. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). Accordingly, Clauses 30 and 36(f) may be inconsistent with the NES as per Chapter 2 Part 2.2 Division 2 of the Act.

  1. I note that in accordance with the NES precedence term in Clause 4 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Delegates’ Rights Term

  1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term from the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

Section 190 Undertakings

  1. The employer 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.

Section 186, 187, 188 and 190

  1. 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.

Section 183 Bargaining Representatives

  1. The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

  1. In accordance with s.201(2), I note that the Agreement covers the AWU and CEPU.

Approval

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 October 2024. The nominal expiry date of the Agreement is 1 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE526176  PR779623>

ANNEXURE A

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