Downer Utilities Australia Pty Ltd

[2025] FWCA 1569

[2025] FWCA 1569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd

(AG2025/1216)

DOWNER UTILITIES AUSTRALIA PTY LTD QUEENSLAND SUBSTATIONS ENTERPRISE AGREEMENT 2024 - 2028

Electrical contracting industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 9 MAY 2025

Application for approval of the Downer Utilities Australia Pty Ltd Queensland Substations Enterprise Agreement 2024 - 2028

1. This decision deals with an application made for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd Queensland Substations Enterprise Agreement 2024 - 2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Downer Utilities Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have been the pre-reform version, however, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. My Chambers raised a number of following issues with the Agreement, with the Applicant on 2 May 2025, which the Applicant asserts to be obvious errors, defects or irregularities:

·   Clause 1.1 of the Agreement title in which “Dpwnmer” should be read as “Downer”; and

·   Clause 1.5.2 of the Agreement which refers to clause 6(d)(ii) which should instead refer to clause 1.5.2(d)(ii)

Bargaining representatives were given an opportunity to comment on these issues and did not do so. I am satisfied that these issues each constitute an obvious error, defect, or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[2] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 2.7.2.5 – Misconduct threshold

·   Clause 6.7 – Personal/Carers Leave evidentiary requirements

However, noting clause 1.4 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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 March 2028.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

<AE528971  PR787201>