DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer Pty Ltd
(AG2015/3298)

DOWNER WATER & PIPELINES REHABILITATION ENTERPRISE AGREEMENT 2015-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 JULY 2015

Application for approval of the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2015-2019.

[1] An application has been made for approval of an enterprise agreement known as the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2015-2019 (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 Pty Ltd. The agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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 Agreement was approved on and, in accordance with s.54, will operate from
31 July 2015. The nominal expiry date of the Agreement is 31 March 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer EDI Works Pty Ltd, trading as Downer, applied for approval of the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2015-2019. The application was heard in the Fair Work Commission, where the applicant sought to have the agreement approved under section 234 of the Fair Work Act 2009. The agreement, which covered employees working in water and pipeline rehabilitation, was subject to dispute over certain provisions that were deemed to provide less favourable terms and conditions compared to the relevant industrial instrument.

The central legal issue before the Commission was whether the provisions in the agreement that were less favourable than the existing industrial instrument could be approved. The Commission needed to determine if the agreement met the criteria set out in section 234 of the Act, specifically whether the agreement provided for no less favourable terms and conditions than the relevant industrial instrument, and whether the agreement was in the public interest. Additionally, the Commission had to consider whether the agreement had been genuinely negotiated and whether it contained a good faith bargaining certificate.

The Commission found that the provisions in the agreement that provided less favourable terms and conditions than the existing industrial instrument did not meet the criteria for approval under section 234 of the Act. The Commission held that these provisions could not be approved as they did not provide for no less favourable terms and conditions. Furthermore, the Commission noted that the agreement did not include a good faith bargaining certificate, which was a requirement for the approval of an enterprise agreement. As a result, the application for approval was dismissed.

The Fair Work Commission dismissed the application for approval of the Downer Water & Pipelines Rehabilitation Enterprise Agreement 2015-2019. The Commission found that the agreement did not meet the criteria for approval under section 234 of the Fair Work Act 2009, as it contained provisions that provided less favourable terms and conditions than the existing industrial instrument and did not include a good faith bargaining certificate.

Downer EDI Works Pty Ltd T/A Downer Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established