Application for approval of the Downer EDI Works Pty Ltd Bituminous Products Transport Business Agreement 2024

[1] An application has been made for approval of an enterprise agreement known as the Downer EDI Works Pty Ltd Bituminous Products Transport Business Agreement 2024 (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 (Downer). The Agreement is a single enterprise agreement.

[2] Several issues were raised with Downer in relation to its application. It provided further submissions in relation to those issues, and several written undertakings, a copy of which are 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. The undertakings relate to:

• Guaranteed minimum fortnightly payment for employees who would otherwise be covered by the Road Transport (Long Distance Operations) Award 2020

• Part time employees' entitlements, for employees who would otherwise be covered by the Road Transport (Long Distance Operations) Award 2020

• Casual employees, minimum engagement, for employees who would otherwise be covered by the Road Transport (Long Distance Operations) Award 2020.

[3] The Agreement does not contain a workplace delegates rights term, Pursuant to s 205A(2) of the Act, the workplace delegates' rights term prescribed by clause 29A of the Road Transport and Distribution Award 2020 is taken to be a term of the Agreement.

Interaction with the National Employment Standards

[4] Clause 2.3(d) of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. To the extent that clause 4.4 (b) of the agreement envisages that monies could be deducted from entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination) the clause will have no effect if it conflicts with the right of employees to be paid in respect of particular entitlements on termination of employment, consistent with Chapter 2 Part 2.2 of the AAct, by operation of the NES precedence clause.

2. Clause 4.5 of the Agreement provides that redundancy pay is not payable where an offer of acceptable alternative employment is made to the employee. Section 120 of the Act provides that a variation of the obligation to pay redundancy pay in circumstances where the employer obtains other acceptable employment for the employee may occur, but requires an application to be made to the Fair Work Commission. Taking into account the NES precedence clause, this deviation from the terms of the NES will not prevent the approval of this Agreement, because s 120 will apply through operation of that clause in any event.

[5] Subject to the undertakings referred to above, and based on the further submissions made by Downer, 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

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