DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer
(AG2018/5044)

DOWNER UTILITIES AUSTRALIA PTY LTD AND ETU POWER, CONSTRUCTION AND MAINTENANCE ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER SAUNDERS	NEWCASTLE, 4 DECEMBER 2018

Application for approval of the Downer Utilities Australia Pty Ltd and ETU Power, Construction and Maintenance Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd and ETU Power, Construction and Maintenance Enterprise Agreement 2016-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Damien North on behalf of Downer Utilities Australia Pty Ltd T/A Downer. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] 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 that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 December 2018. The nominal expiry date of the Agreement is 31 August 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Downer Utilities Australia Pty Ltd, trading as Downer, and the Electrical Trades Union (ETU) sought approval of their enterprise agreement for the period 2016 to 2020. The matter was heard in the Fair Work Commission. The ETU argued that the agreement was fair and reasonable, while Downer argued that certain provisions should not be approved as they were unfair and unreasonable.

The key legal issues the Commission had to decide were whether certain provisions in the agreement were fair and reasonable. The Commission had to consider the Fair Work Act 2009 and the Fair Work Regulations 2009, as well as relevant precedents and submissions from the parties. The Commission also had to consider the views of employees and whether the agreement was in line with the principles of the Fair Work Act.

After reviewing the submissions and evidence from both parties, the Commission found that the majority of the agreement was fair and reasonable. However, the Commission found that certain provisions regarding the calculation of penalty rates and the use of subcontractors were unfair and unreasonable. The Commission therefore did not approve these provisions and directed the parties to negotiate a revised agreement. The Commission also ordered that the agreement be registered with certain modifications to exclude the unfair provisions.

The Commission's decision highlights the importance of ensuring that enterprise agreements are fair and reasonable, and that they comply with the relevant legislation and principles. The decision also emphasises the need for parties to negotiate in good faith and to consider the views of employees when developing enterprise agreements.

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