Downer EDI Works Pty Ltd T/A Downer Group

[2020] FWCA 2609

[2020] FWCA 2609

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer Group
(AG2020/1177)

DOWNER EDI WORKS PTY LTD MELBOURNE ASPHALT ENTERPRISE AGREEMENT 2019

Asphalt industry
COMMISSIONER LEE	MELBOURNE, 19 MAY 2020

Application for approval of the Downer EDI Works Pty Ltd Melbourne Asphalt Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd Melbourne Asphalt Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Downer EDI Works Pty Ltd T/A Downer Group. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The application was not accompanied by a properly witnessed statutory declaration. Pursuant to s.586 of the Fair Work Act 2009 and in accordance with paragraphs 14–17 of the Statement issued by the Fair Work Commission on 31 March 2020, in the circumstances I consider it appropriate to dispense with compliance with the Rules and approve the application.

[6] 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.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 25 – Vehicle License;

•  Clause 31.5(d) – Abandonment of employment

However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 May 2020. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

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Annexure A