Downer EDI Works Pty Ltd T/A Downer Infrastructure

[2018] FWCA 1175

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer Infrastructure

(AG2017/4791)

Downer EDI Works Pty Ltd North Sydney Road Maintenance (PSMC) Enterprise Agreement 2016

Asphalt industry
Commissioner McKinnon	MELBOURNE, 23 FEBRUARY 2018

Application for approval of the Downer EDI Works Pty Ltd North Sydney Road Maintenance (PSMC) Enterprise Agreement 2016.

An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd North Sydney Road Maintenance (PSMC) Enterprise Agreement 2016 (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 Infrastructure. The Agreement is a single enterprise agreement.

The Applicant 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.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2018. The nominal expiry date of the Agreement is 17 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Downer EDI Works Pty Ltd North Sydney Road Maintenance (PSMC) Enterprise Agreement 2016. The applicant, Downer EDI Works Pty Ltd, sought approval for the enterprise agreement which aimed to regulate the terms and conditions of employment for its employees. The dispute centred around whether the agreement complied with the Fair Work Act 2009, specifically concerning the provisions related to wages, hours of work, and other employment conditions. The Commission was tasked with determining if the agreement met the requirements for approval under the Act.

The primary legal issues before the Commission were whether the enterprise agreement was a "bargained" agreement as defined under the Fair Work Act, and if it complied with the provisions of the Act, including the "better off overall test" (BOOT). This test required that the agreement be at least as good as the applicable awards or other instruments in terms of wages, conditions, and overall terms and conditions of employment. Additionally, the Commission needed to consider if the agreement met the procedural requirements for its approval, including proper consultation and the provision of necessary information to the employees.

In its reasoning, the Commission examined the process by which the agreement was negotiated and the extent to which it was genuinely bargained between the parties. It assessed the fairness and adequacy of the terms proposed in the agreement, particularly focusing on the wage rates, leave entitlements, and other conditions of employment. The Commission found that the agreement was genuinely bargained and met the BOOT, as it provided employees with terms and conditions that were at least as good as, if not better than, those provided by the applicable awards. The procedural requirements for approval were also met, as the applicant had engaged in proper consultation with the employees and provided them with all necessary information. Consequently, the Commission approved the application for the agreement.

The final orders of the Commission were that the Downer EDI Works Pty Ltd North Sydney Road Maintenance (PSMC) Enterprise Agreement 2016 be approved under the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by it, effective from the date of approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established