Downer EDI Works Pty Ltd T/A Downer Summary

[2022] FWCA 3739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer EDI Works Pty Ltd T/A Downer

(AG2022/3987)

Downer EDI Works Pty Ltd and ETU Victorian Rail Infrastructure Enterprise Agreement 2021 – 2025

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 25 OCTOBER 2022

Application for approval of the Downer EDI Works Pty Ltd and ETU Victorian Rail Infrastructure Enterprise Agreement 2021 – 2025.

Downer EDI Works Pty Ltd T/A Downer (the Employer) has made an application for the approval of the Downer EDI Works Pty Ltd and ETU Victorian Rail Infrastructure Enterprise Agreement 2021 – 2025 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 12.3(a)(i) – Redundancy is potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was a bargaining representative for the Agreement and 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 CEPU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Fair Work Act 2009, Downer EDI Works Pty Ltd, trading as Downer, applied to the Fair Work Commission for approval of their Enterprise Agreement (EA) with the Electrical Trades Union (ETU) Victorian Rail Infrastructure. The application was made pursuant to section 234 of the Fair Work Act, which mandates that the Commission must approve an EA if it determines that the agreement meets the requirements for registration. The primary issue before the Commission was whether the EA met the criteria for approval under the Fair Work Act. This involved examining if the agreement provided for modern awards and other entitlements, as well as ensuring that the EA had been made in good faith and without the coercion of any party.

The Commission's analysis focused on whether the EA sufficiently addressed the pay rates, conditions, and entitlements as required by the Fair Work Act. It also considered the process through which the agreement was negotiated to ensure it was conducted in good faith. The Commission assessed whether there was any evidence of coercion or undue influence that could invalidate the agreement. After reviewing the evidence and submissions from both parties, the Commission determined that the EA met the statutory requirements for approval. It found that the agreement provided for the applicable modern awards and other entitlements, and that the negotiation process was conducted in good faith.

Consequently, the Fair Work Commission approved the Downer EDI Works Pty Ltd and ETU Victorian Rail Infrastructure Enterprise Agreement 2021 – 2025, determining that it complied with all necessary legislative criteria. This decision ensures that the terms and conditions set out in the EA will be legally binding between the employer and the union, effective from the date of approval.

Downer EDI Works Pty Ltd T/A Downer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established