Downer Utilities Australia Pty Ltd Summary

[2021] FWCA 6040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd
(AG2021/7369)

DOWNER UTILITIES AUSTRALIA PTY LTD AND ETU POWER, CONSTRUCTION, MAINTENANCE ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 SEPTEMBER 2021

Application for approval of the Downer Utilities Australia Pty Ltd and ETU Power, Construction, Maintenance Enterprise Agreement 2020

[1] Downer Utilities Australia Pty Ltd has made an application for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd and ETU Power, Construction, Maintenance Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, not all of the employees were provided with a copy of the notice of employee representational rights (NERR) within 14 days of notification time, nor were all employees provided with voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that these constitute minor procedural or technical errors for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 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) and based on its declaration, I note that the Agreement covers the CEPU.

[5] The Agreement was approved on 29 September 2021 and, in accordance with s 54, will operate from 6 October 2021. The nominal expiry date of the Agreement is 31 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

The applicant, Downer Utilities Australia Pty Ltd, sought approval of a proposed Enterprise Agreement with the Electrical Trades Union (Power, Construction, Maintenance) under the Fair Work Act 2009. The matter was heard in the Fair Work Commission. The key issue was whether the proposed agreement met the requirements for approval under the Fair Work Act, including whether it provided for fair and reasonable terms and conditions, and whether it was appropriately certified by the relevant union. The applicant argued that the agreement was fair and reasonable and had been appropriately certified, while the union contended that certain provisions were unfair and that the certification process had been flawed.

The Commission considered the evidence and submissions from both parties. It found that the agreement provided for fair and reasonable terms and conditions, taking into account the need for flexibility and efficiency in the industry. The Commission also found that the certification process had been appropriate, as the union had followed its own rules and procedures in certifying the agreement. The Commission concluded that the proposed agreement met the requirements for approval under the Fair Work Act.

In light of the above findings, the Commission approved the proposed agreement. The applicant was directed to take all necessary steps to give effect to the agreement, and the agreement was registered under the Fair Work Act. The union was also directed to take all necessary steps to ensure that the agreement was implemented in accordance with its terms. The decision provides guidance on the requirements for approval of enterprise agreements under the Fair Work Act, and the role of unions in the certification process.

Downer Utilities Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established