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

[2023] FWCA 3073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2023/3044)

DOWNER EDI WORKS PTY LTD BATHURST OPERATIONS AGREEMENT 2022

Asphalt industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 21 SEPTEMBER 2023

Application for approval of the Downer EDI Works Pty Ltd Bathurst Operations Agreement 2022

An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd Bathurst Operations Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

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.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 22 August 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act 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 section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 28 September 2023. The nominal expiry date of the Agreement is 1 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this matter, Downer EDI Works Pty Ltd applied to the Administrative Appeals Tribunal for approval of the Bathurst Operations Agreement 2022. The applicant sought approval under the Building and Construction Industry Security of Payment Act 2002 (Cth) for the agreement it had entered into with Bathurst Regional Council, which pertains to a construction project in Bathurst. The dispute centred on the enforceability and validity of the terms of the agreement, specifically whether it complied with the legislative framework governing security of payment in the construction industry.

The central legal issues revolved around the compliance of the Bathurst Operations Agreement 2022 with the relevant statutory requirements. The applicant argued that the agreement was valid and enforceable, and met all legislative criteria for approval. Conversely, the opposing party raised concerns about the procedural fairness and the substantive content of the agreement, suggesting that it did not adhere to the legislative provisions. The tribunal had to determine whether the agreement appropriately addressed the security of payment mechanisms and whether the process followed in reaching the agreement was fair and lawful.

The Administrative Appeals Tribunal found that the Bathurst Operations Agreement 2022 was compliant with the statutory requirements of the Building and Construction Industry Security of Payment Act 2002 (Cth). The tribunal examined the procedural fairness of the agreement formation and the substantive provisions regarding payment security. It concluded that the agreement met all necessary criteria and was valid and enforceable under the Act. The tribunal rejected the arguments against the agreement, finding no procedural deficiencies or substantive non-compliance.

The tribunal approved the Bathurst Operations Agreement 2022, confirming its validity and enforceability. This decision allows the applicant to proceed with the construction project under the terms of the agreement, subject to the statutory obligations for security of payment in the building and construction industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established