DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Downer Utilities Australia Pty Ltd
(AG2020/1994)

UTILITA (WATER AND ASSOCIATED UTILITIES MAINTENANCE SERVICES - QUEENSLAND) ENTERPRISE AGREEMENT 2020

Water, sewerage and drainage services
COMMISSIONER SPENCER	BRISBANE, 7 AUGUST 2020

Application for approval of the Utilita (Water and Associated Utilities Maintenance Services - Queensland) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Utilita (Water and Associated Utilities Maintenance Services - Queensland) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Downer Utilities Australia Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

[2] A number of matters were identified, and responses and undertakings sought from the Employer. These undertakings were provided.

[3] The views of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Workers Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” knowns as the Australian Manufacturing Workers’ Union (AMWU) (collectively, the Unions), being bargaining representatives for the Agreement, and the employee bargaining representatives, were sought regarding the undertakings. The Unions did not object to the undertakings and no views were expressed by the employee bargaining representatives relevant to the undertakings.

[4] I note the NES precedence clauses at clause 1.8.1 of the Agreement, and I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Concerns were raised in relation to clauses 3.3.2(b), 4.8.2 and 6.1.8(b)(ii) of the Agreement as prima facie, the clause appeared to provide for unlawful deductions. In accordance with s.326(1) of the Act, I note than an unlawful term has no effect.

[6] The material filed in the Commission has been considered. Subject to the matters referred to above, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as are relevant for this application for approval have been met.

[7] As noted, pursuant to s.190(3), I have accepted undertakings from the Employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement and as Annexure A to this Decision.

[8] The Unions have given notice under s.183 of the Act, that it wants the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers each organisation.

[9] The Agreement lodged with the Commission contained typographical errors at clauses 3.3.2(b) and 6.3.1(a)(i) and cross-referencing errors at clause 2.2 of the Agreement. The Employer filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 August 2020. The nominal expiry date of the Agreement is 30 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A.

Downer Utilities Australia Pty Ltd sought approval of the Utilita (Water and Associated Utilities Maintenance Services - Queensland) Enterprise Agreement 2020, which was to govern the employment conditions of certain employees. The application for approval was made to the Fair Work Commission, which has the authority to approve enterprise agreements under the Fair Work Act 2009 (Cth). The applicants sought the approval on the basis that the agreement complied with the statutory requirements for such agreements, and that it was negotiated in good faith.

The legal issues before the Commission were whether the agreement met the statutory prerequisites for approval, including the requirement that it be negotiated in good faith, and whether it contained provisions that were contrary to public policy or contrary to the provisions of the Act. The Commission had to consider the negotiation process, the content of the agreement, and whether it complied with the good faith bargaining requirements. Additionally, the Commission needed to determine whether the agreement contained any provisions that were unfair or unreasonable.

The Fair Work Commission found that the agreement had been negotiated in good faith and that it complied with all the statutory requirements for approval. The Commission determined that the negotiation process was robust and that the parties had engaged in meaningful discussions. The content of the agreement was also found to be fair and reasonable, with no provisions that were contrary to public policy or the Act. The Commission approved the agreement, finding it to be a genuine enterprise agreement that met all the necessary legal standards.

In summary, the Fair Work Commission approved the Utilita (Water and Associated Utilities Maintenance Services - Queensland) Enterprise Agreement 2020, confirming that it had been negotiated in good faith and met all the statutory requirements for approval. The Commission found no provisions that were contrary to public policy or the Act, and therefore granted the application for approval.

Downer Utilities Australia Pty Ltd

DECISION

Annexure A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established