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

[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

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

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

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.

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.

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

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

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

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

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.

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

Approval

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

ANNEXURE A

Downer EDI Works Pty Ltd sought approval of the Downer EDI Works Pty Ltd Sydney Maintenance Agreement 2024 in the New South Wales Civil and Administrative Tribunal. The agreement aimed to establish terms and conditions for maintenance work performed by Downer EDI on infrastructure in Sydney. The dispute centred on whether the terms of the agreement were fair and reasonable, and if they complied with relevant legislative standards.

The tribunal was tasked with determining whether the agreement met the statutory requirements for a maintenance agreement under the Infrastructure Agreements (Maintenance) Act 2019. This involved examining the clarity and fairness of the terms, as well as assessing if the agreement provided adequate protection for both parties involved. The tribunal also needed to ensure that the agreement was not contrary to public interest.

Upon review, the tribunal found that the agreement contained clear and fair terms that adequately protected both parties. The tribunal was satisfied that the agreement complied with the statutory requirements and did not contravene public interest. Consequently, the tribunal approved the agreement, affirming its fairness and reasonableness under the relevant legislation. The tribunal's decision provided clarity on the terms and conditions that maintenance agreements must adhere to, ensuring compliance with statutory obligations and protecting the interests of both parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established