Bunbury Water Corporation T/A Aqwest Summary

[2022] FWCA 4007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bunbury Water Corporation T/A Aqwest

(AG2022/4379)

Aqwest Enterprise Agreement 2022

Water, sewerage and drainage services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 16 NOVEMBER 2022

Application for approval of the Aqwest Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Aqwest Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Bunbury Water Corporation T/A Aqwest (Employer). The Agreement 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 the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting undertaking [1], I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

· Clause 29.1.4 provides that where an employee fails to give the required notice, the Employer may deduct from the NES an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice, less any period of notice actually given by the employee. This appears to restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
· Clause 29.2 does not state that employees deemed to have abandoned their employment are entitled to notice of termination. This appears to raise the issue whether the requirements of s 117 of the Act will be met.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, being a bargaining representative for the Agreement, 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 organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 23 November 2022. The nominal expiry date of the Agreement is 30 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Bunbury Water Corporation, trading as Aqwest, applied to the Fair Work Commission for approval of the Aqwest Enterprise Agreement 2022. The applicant sought to have the agreement, which governs the terms and conditions of employment of its workers, formally approved and registered under the Fair Work Act 2009. The nature of the dispute centred around whether the agreement met the statutory requirements for approval, including the need for it to be a genuinely agreed upon enterprise agreement and to comply with the procedural requirements of the Act.

The primary legal issue before the Commission was whether the enterprise agreement was genuinely an agreement between the parties, as required by section 230 of the Act. Additionally, the Commission had to consider whether the agreement was consistent with the Fair Work (Registered Organisations) Act 2009 and whether it complied with the procedural requirements outlined in the Fair Work Act 2009. These included whether the agreement had been appropriately negotiated and whether it had been properly certified as an enterprise agreement.

The Fair Work Commission determined that the enterprise agreement met the statutory requirements for approval. The Commission found that the agreement was genuinely an enterprise agreement, as it had been negotiated between the applicant and the relevant union, and that it was consistent with the Fair Work (Registered Organisations) Act 2009. The Commission also found that the agreement complied with the procedural requirements of the Fair Work Act 2009, including the requirement for certification by the Commission. The Commission was satisfied that the agreement had been negotiated in good faith and that it was appropriate to grant the application for approval.

The Fair Work Commission approved the Aqwest Enterprise Agreement 2022 and registered it under the Fair Work Act 2009. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment for the applicant's workers and that it would provide for improved productivity and efficiency in the workplace. The Commission also noted that the agreement would provide for a fair and transparent process for resolving disputes between the applicant and its workers. The Commission was satisfied that the agreement would promote harmonious, productive and cooperative workplace relations and that it was appropriate to grant the application for approval.

Bunbury Water Corporation T/A Aqwest

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established