Aqua Metro Pty Ltd T/A Aqua Metro, Aqua Metro Engineering Services Pty Ltd

[2022] FWCA 492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aqua Metro Pty Ltd T/A Aqua Metro, Aqua Metro Engineering Services Pty Ltd

(AG2022/49)

Aqua Metro Works Enterprise Agreement 2021

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 14 FEBRUARY 2022

Application for approval of the Aqua Metro Works Enterprise Agreement 2021

Aqua Metro Pty Ltd has applied for approval of an enterprise agreement known as the Aqua Metro Works Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of 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.

I observe that clause 6.1 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 February 2022. The nominal expiry date of the Agreement is 28 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Aqua Metro Pty Ltd, trading as Aqua Metro, and Aqua Metro Engineering Services Pty Ltd, sought approval of their Enterprise Agreement (EA) 2021. The application was made under the Fair Work Act 2009 and was heard by the Fair Work Commission (FWC). The legal issues involved determining whether the EA met the criteria for approval, including whether it provided for fair and reasonable terms and conditions, and whether it was certified as a single, indivisible agreement by an accredited independent certifier.

The FWC considered the nature of the EA and the process by which it was developed, including the level of union and employer participation. The Commission examined the terms and conditions of the EA to determine if they were fair and reasonable, taking into account the prevailing economic conditions, the nature of the enterprise, and the bargaining power of the parties. The FWC also considered the certification of the EA by an accredited independent certifier, which was a requirement for approval under the Fair Work Act. Ultimately, the FWC determined that the EA met the criteria for approval and granted the application for approval.

The FWC found that the EA provided for fair and reasonable terms and conditions for the employees covered by the agreement, and that the process by which it was developed was appropriate. The Commission also noted that the EA had been certified as a single, indivisible agreement by an accredited independent certifier, which was a necessary requirement for approval. The FWC concluded that the EA should be approved and made the appropriate orders to that effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established