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

[2024] FWCA 2911

[2024] FWCA 2911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2024/2730)

DOWNER EDI WORKS PTY LTD VICTORIAN ROAD MAINTENANCE ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER TRAN	MELBOURNE, 7 AUGUST 2024

Application for approval of the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024

1. Downer Edi Works Pty Ltd T/A Downer Edi Works Pty Ltd has applied for approval of an enterprise agreement known as Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

1. The Agreement is a single enterprise agreement.

1. 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.

1. The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 36A of the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

• Clause 19.4(c) – Compassionate Leave does not provide for circumstances relating to stillbirth or miscarriage as required by s 104(1)(b) and (c) of the Act; and

• Clauses 29.7(d) – Abandonment of employment may be inconsistent with s 117 of the Act.

1. The Agreement contains an effective NES precedence clause at Clause 2.3 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.

1. Subject to the undertakings and other matters 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.

1. The Australian Workers’ Union, 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.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 14 August 2024.

1. In accordance with Clause 2.2, the nominal expiry date of the Agreement is 1 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE525726  PR777976>

Annexure A