Downer Utilities Australia Pty Ltd T/A Downer

[2024] FWCA 2162

[2024] FWCA 2162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer

(AG2024/1744)

DOWNER UTILITIES AUSTRALIA PTY LTD & ETU POWERLINE ENTERPRISE AGREEMENT 2023-2026

Electrical contracting industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 12 JUNE 2024

Application for approval of the Downer Utilities Australia Pty Ltd &ETU Powerline Enterprise Agreement 2023-2026

Introduction

1. Downer Utilities Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd & ETU Powerline Enterprise Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Model Consultation Terms

1. The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

National Employment Standards (NES) precedence term

1. Clause 27.15 of the Agreement appears to be silent as to the entitlement to compassionate leave in cases of stillbirth or miscarriage, as provided by s.104 of the Act.

1. Clause 28.3(g) of the Agreement states that an employee who does not accept a suitable alternative position shall not be entitled to any payment associated with redundancy. However, this clause is silent as to the necessity of the making of an application to this end before the Commission under s.120 of the Act.

1. Clause 29(a) of the Agreement appears to exclude apprentices from notice of termination provisions, which may be inconsistent with s.117 of the Act.

1. Clause 29(k) of the Agreement states ‘if the employee fails to give notice the Employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice.’ The clause is silent as to the source of the monies to be deducted by the Employer. Accordingly, the effect of this clause may permit deductions from an employee’s entitlements under the NES in a manner not otherwise consistent with Part 2-2 of the Act.

1. To the extent that these clauses may be inconsistent with the NES, I note that in accordance with the NES precedence term in Clause 6 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 186, 187, and 188

1. 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.

Section 183 Bargaining Representatives

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the ETU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 June 2024. The nominal expiry date of the Agreement is 31 August 2026.

DEPUTY PRESIDENT

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