DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd t/a Downer
(AG2021/4941)

DOWNER UTILITIES AUSTRALIA PTY LTD POWER INDUSTRY & SUBSTATION ENTERPRISE AGREEMENT SOUTH AUSTRALIA 2021

Electrical contracting industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 24 MAY 2021

Application for approval of the Downer Utilities Australia Pty Ltd Power Industry & Substation Enterprise Agreement South Australia 2021.

[1] Downer Utilities Australia Pty Ltd has applied for approval of a single enterprise agreement known as the Downer Utilities Australia Pty Ltd Power Industry and Substation Enterprise Agreement South Australia 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representative did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[4] Noting clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, 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.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 24 May 2021 and, in accordance with s.54, will operate from 31 May 2021. The nominal expiry date of the Agreement is 1 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Downer Utilities Australia Pty Ltd sought approval of an enterprise agreement, specifically the Downer Utilities Australia Pty Ltd Power Industry & Substation Enterprise Agreement South Australia 2021. The dispute involved the terms of the proposed agreement, which was set to govern the employment conditions of the company’s employees in South Australia. The Commission was tasked with determining whether the agreement met the necessary requirements under the Fair Work Act 2009, including compliance with the Better Off Overall Test (BOOT).

The legal issues before the Commission included whether the proposed agreement provided for terms and conditions that were at least as good as the relevant awards and whether it included provisions for employee protections and entitlements in line with statutory requirements. Additionally, the Commission needed to consider if the agreement had been fairly negotiated and if it complied with procedural requirements, such as proper consultation and notice provisions. The fairness of the agreement was assessed based on whether it provided employees with a better overall package than what they would receive under the applicable awards.

In rendering its decision, the Commission evaluated the terms of the proposed agreement against the relevant awards and the statutory obligations. The Commission found that the agreement provided for terms and conditions that met the BOOT, offering employees benefits that were at least as good as those under the applicable awards. The Commission also confirmed that the agreement included adequate provisions for employee entitlements, protections, and procedural fairness. After thorough consideration, the Commission approved the agreement, determining that it complied with the necessary legal and procedural standards under the Fair Work Act 2009.

Downer Utilities Australia Pty Ltd t/a Downer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established