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

[2023] FWCA 1695

[2023] FWCA 1695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

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

(AG2023/1490)

DOWNER EDI WORKS PTY LTD MELBOURNE ASPHALT ENTERPRISE AGREEMENT 2023

Asphalt industry
COMMISSIONER PLATT	ADELAIDE, 9 JUNE 2023

Application for approval of the Downer EDI Works Pty Ltd Melbourne Asphalt Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd Melbourne Asphalt Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd T/A Downer Edi Works Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 26 May 2023.

1. There are two National Employment Standards (NES) issues that require comment:

·        Withholding of NES Entitlements – Cl.27.2(b) of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

·        Compassionate Leave – Cl.16 of the Agreement does not appear to provide compassionate leave for stillbirth/miscarriage consistent with s.104(1)(b) and (c) of the Act.

1. Clause 4 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 1 June 2023. The undertaking deals with the following topic:

·        Despite Clause 45 of the Agreement, a casual Employee who works on a public holiday will be paid 250% of the casual rate of pay for the time worked.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE520310  PR762956>