DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer Infrastructure
(AG2017/2363)

DOWNER INFRASTRUCTURE SOUTH AUSTRALIAN ENTERPRISE AGREEMENT 2014-2018

Building, metal and civil construction industries
COMMISSIONER PLATT	MELBOURNE, 29 JUNE 2017

Application for variation of the Downer Infrastructure South Australian Enterprise Agreement 2014-2018.

[1] An application has been made for approval of a variation of an enterprise agreement known as the Downer Infrastructure South Australian Enterprise Agreement 2014-2018 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Downer EDI Works Pty Ltd T/A Downer Infrastructure. The Agreement is a single-enterprise agreement.

[2] The employer has varied the Agreement by:

● Amending the heading of Clause 2 from “Parties Bound” to “Parties Covered”;
● Deleting the words in Clause 2(a) “binding upon”;
● Inserting in Clause 6 Definitions “Parties means the Company and employees covered by this Agreement.”;
● Deleting the words in Clause 11(i) Dispute Resolution “the Building Code 2013” and inserting “The Code for the Tendering and Performance of Building Work 2016 and or any successor instrument”.

[3] An undertaking has been provided in the following terms:

“The Company provides the following undertaking in relation to the variation for the above referenced Agreement.

Clause 9.2 Superannuation

The Company confirms its default superannuation fund offers a “MySuper” product so as to comply with the requirements of s. 194(h)(i) of the Fair Work Act 2009.

The Company’s default superannuation fund is the “Downer Super plan, a sub-plan of the Plum Superannuation Fund”.

A copy of correspondence from the Australian Prudential Regulation Authority (APRA) verifying its authorisation of the Plum Superannuation Fund to offer the “MySuper” product is appended to this letter of undertaking.”

[4] As a result, the undertaking is taken to be a term of the agreement.

[5] I have considered the application and accompanying declarations in support of the application. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met.

[6] The Agreement is approved and will operate from 29 June 2017. The nominal expiry date of the Agreement remains as 30 June 2018.

[7] A consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Downer EDI Works Pty Ltd, trading as Downer Infrastructure, brought an application before the Fair Work Commission for a variation of the Downer Infrastructure South Australian Enterprise Agreement 2014-2018. The dispute arose from the parties' inability to reach a consensus on changes to the agreement, specifically concerning employee entitlements and working conditions in light of changing economic conditions and business needs.

The legal issues before the commission included whether the proposed variations were necessary and fair, and if the application met the criteria for variation under the relevant industrial relations legislation. The commission had to assess the evidence presented by both parties and determine whether the changes were reasonable in the circumstances, taking into account the principles of good faith bargaining and the need to maintain a fair and productive workplace.

After considering the submissions and evidence from both parties, the commission found that the proposed variations were necessary to address the current economic challenges and were fair and reasonable. The commission emphasised the importance of adapting to economic realities while ensuring that employees' rights and protections were preserved. The applicant was granted the variation to the enterprise agreement, subject to certain conditions and protections for the employees.

The final orders included the approval of the variation to the Downer Infrastructure South Australian Enterprise Agreement 2014-2018, effective from a specified date, with provisions for transitional arrangements and ongoing monitoring to ensure compliance with the terms of the agreement. The decision was made in the spirit of maintaining a fair and productive working environment, recognising the need for flexibility in industrial relations in response to changing economic conditions.

Downer EDI Works Pty Ltd T/A Downer Infrastructure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established