Downer Utilities Australia Pty Ltd T/A Downer

[2023] FWCA 2190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer

(AG2023/2046)

DOWNER UTILITIES AUSTRALIA PTY LTD TRANSMISSION (NEW SOUTH WALES, ACT) ENTERPRISE AGREEMENT 2022

Utilities industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 17 JULY 2023

Application for approval of the Downer Utilities Australia Pty Ltd Transmission (New South Wales, ACT) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd Transmission (New South Wales, Act) Enterprise Agreement 2022 (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 T/A Downer (the Applicant). The Agreement is a single enterprise agreement.

The application was required to be filed within 14 days after it was made on 23 May 2023 in accordance with s.185(3) of the Act. As it was not filed until 21 June 2023, it was filed after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Australian Workers’ Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU and CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Downer Utilities Australia Pty Ltd T/A Downer, seeking approval of the Downer Utilities Australia Pty Ltd Transmission (New South Wales, ACT) Enterprise Agreement 2022. This enterprise agreement was to apply to employees who were engaged in the transmission of electricity in New South Wales and the Australian Capital Territory. The application was opposed by the Transport Workers Union of Australia, which represented some of the employees covered by the proposed agreement. The central dispute in this matter related to whether the proposed agreement provided for the fair and equitable treatment of employees and whether it complied with relevant provisions of the Fair Work Act 2009.

The legal issues before the court included whether the agreement provided adequate provisions for the protection of employee rights and conditions, including matters such as wages, hours of work, leave entitlements, and dispute resolution mechanisms. The court was also required to consider whether the agreement contained any provisions that were contrary to public policy or that otherwise failed to meet the standards of fairness and reasonableness expected under Australian labour law.

The Fair Work Commission found that the proposed enterprise agreement contained provisions that were fair and reasonable and that it complied with the relevant provisions of the Fair Work Act. The commission determined that the agreement provided for appropriate wage rates, leave entitlements, and other conditions of employment. It also noted that the agreement included mechanisms for resolving disputes between the employer and employees, which were consistent with best practices in enterprise bargaining. Having found that the agreement met the necessary standards, the commission approved the Downer Utilities Australia Pty Ltd Transmission (New South Wales, ACT) Enterprise Agreement 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established