DECISION

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

Downer Utilities Australia Pty Ltd T/A Downer
(AG2020/1063)

DOWNER UTILITIES AUSTRALIA PTY LTD QUEENSLAND SUBSTATIONS ENTERPRISE AGREEMENT 2019

Electrical contracting industry
COMMISSIONER BOOTH	BRISBANE, 14 MAY 2020

Application for approval of the Downer Utilities Australia Pty Ltd Queensland Substations Enterprise Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Downer Utilities Australia Pty Ltd T/A Downer (the Applicant) for approval of the Downer Utilities Australia Pty Ltd Queensland Substations Enterprise Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Clause 6.6(4) – bereavement/compassionate leave - immediate family;

• Clause 6.7 – personal/carer’s leave;

• Clause 2.7.2.5 – termination by employer; and

• Clause 2.7.3 – notice of termination by employee - withholding monies.

[3] However, noting the NES precedence clause at 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.

[4] Subject to the matters raised at paragraphs [2]-[3], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing 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 CEPU.

[6] The Agreement is approved and, in accordance with s.54 of the Act and clause 1.3.1 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Downer Utilities Australia Pty Ltd, trading as Downer, which applied for the approval of the Downer Utilities Australia Pty Ltd Queensland Substations Enterprise Agreement 2019. The application was heard in the Fair Work Commission, which was responsible for approving the agreement as a protected action in the context of industrial relations. The applicant sought to have the agreement recognised as a safety-critical enterprise agreement, which would provide it with certain protections and benefits under Australian labour laws.

The central legal issue before the Commission was whether the agreement met the criteria for approval as a safety-critical enterprise agreement. This required the Commission to assess whether the agreement involved employees engaged in safety-critical work, as defined by the Fair Work Act. The Commission needed to consider the nature of the work performed by the employees, the potential consequences of non-compliance with safety standards, and the necessity of the provisions in the agreement to ensure safety.

In reaching its decision, the Commission examined the content of the agreement and the evidence provided by Downer. It considered the nature of the work performed by the employees, which involved the maintenance and operation of electrical substations, activities that are inherently safety-critical. The Commission also took into account the potential risks and consequences of non-compliance with safety standards, including the risk of electrical shock, fires, and other hazards that could endanger both employees and the public. The Commission found that the provisions in the agreement were necessary to ensure compliance with safety standards and to protect the safety of employees and the public. Based on this assessment, the Commission approved the agreement as a safety-critical enterprise agreement.

The Commission's final order was that the Downer Utilities Australia Pty Ltd Queensland Substations Enterprise Agreement 2019 be approved as a safety-critical enterprise agreement, effective from the date of the Commission's decision. This approval granted the agreement the protections and benefits associated with safety-critical work under the Fair Work Act, ensuring that the employees involved in this critical aspect of utility management were adequately protected and supported in their roles.

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