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

[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

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).

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.

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.

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.

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.

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.

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.

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

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

Annexure A

In the Fair Work Commission, Downer Edi Works Pty Ltd, trading as Downer Edi Works Pty Ltd, applied for the approval of the Downer EDI Works Pty Ltd Victorian Road Maintenance Enterprise Agreement 2024. The application was made under section 231 of the Fair Work Act 2009, which governs the approval process for enterprise agreements. The dispute centred on whether the agreement complied with the legislative requirements and whether it was negotiated in good faith.

The primary legal issues before the Commission were whether the agreement met the prerequisites set out in the Fair Work Act, including provisions relating to good faith negotiations, and whether it contained all the mandatory terms and conditions specified in the Act. Additionally, the Commission had to determine if the agreement provided fair and reasonable terms for the employees covered by it.

The Commission found that the agreement was negotiated in good faith and contained all necessary mandatory terms and conditions. It was satisfied that the agreement provided fair and reasonable terms for the employees, taking into account the nature of the industry and the specific circumstances of the workforce. The Commission was also satisfied that the agreement met all legislative requirements and thus approved the agreement. The final orders were made under section 231(1)(a) of the Fair Work Act, approving the enterprise agreement as of the date of the decision.

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