Downer Utilities Australia Pty Ltd T/A Downer Summary

[2023] FWCA 2189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer

(AG2023/2045)

DOWNER UTILITIES AUSTRALIA PTY LTD TRANSMISSION (TASMANIA, SOUTH AUSTRALIA, WESTERN AUSTRALIA)

ENTERPRISE AGREEMENT 2022

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

Application for approval of the Downer Utilities Australia Pty Ltd Transmission (Tasmania, South Australia, Western Australia) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd Transmission (Tasmania, South Australia, Western Australia) 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

Downer Utilities Australia Pty Ltd, trading as Downer, applied to the Fair Work Commission for approval of the Downer Utilities Australia Pty Ltd Transmission (Tasmania, South Australia, Western Australia) Enterprise Agreement 2022. The application was made under the Fair Work Act 2009, which requires certain agreements to be approved by the Fair Work Commission to be applicable to employees. The employees in question were those working in the transmission division across Tasmania, South Australia, and Western Australia.

The central legal issue before the Fair Work Commission was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement provided for the terms and conditions of employment in a fair and flexible manner, taking into account the principles of efficient, productive, and harmonious workplace relations. The Commission also had to consider whether the agreement was consistent with the National Employment Standards and the applicable minimum awards.

The Fair Work Commission carefully reviewed the provisions of the proposed enterprise agreement. It found that the agreement provided for terms and conditions that were fair and flexible, taking into account the principles of efficient, productive, and harmonious workplace relations. The Commission noted that the agreement was negotiated in good faith and included provisions for the resolution of disputes, the protection of employees’ rights, and the establishment of a fair and equitable workplace. Furthermore, the Commission was satisfied that the agreement did not undermine the National Employment Standards or the applicable minimum awards. As such, the Commission approved the application for the agreement to be registered.

In light of the Commission’s findings, the Fair Work Commission approved the application for the Downer Utilities Australia Pty Ltd Transmission (Tasmania, South Australia, Western Australia) Enterprise Agreement 2022 to be registered. This approval means that the agreement will now apply to the relevant employees, providing them with the terms and conditions outlined in the agreement.

Downer Utilities Australia Pty Ltd T/A Downer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established