Downer Utilities Australia Pty Ltd T/A Downer

[2023] FWCA 1301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer

(AG2023/1073)

APPLICATION FOR APPROVAL OF THE DOWNER WATER SERVICES NSW ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 8 MAY 2023

Application for approval of the Downer Water Services NSW Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the DOWNER WATER SERVICES NSW 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 Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 190 as are relevant to this application for approval have been met.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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) of the Act I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 May 2023. The nominal expiry date of the Agreement is 30 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Downer Utilities Australia Pty Ltd, trading as Downer, applied to the Fair Work Commission for the approval of the Downer Water Services NSW Enterprise Agreement 2022. The application involved a collective agreement between Downer and its employees represented by the Australian Manufacturing Workers Union. The dispute centred around the terms and conditions of employment, including wages, hours of work, and other related matters, as outlined in the proposed agreement.

The legal issues before the Commission were primarily concerned with whether the agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement that it provide for the payment of a minimum rate of pay and minimum hours of work that are no less favourable than those provided by the applicable award. The Commission also had to consider whether the agreement met the 'better off overall test', ensuring that employees were not worse off financially under the proposed agreement compared to the applicable award.

In its decision, the Fair Work Commission found that the Downer Water Services NSW Enterprise Agreement 2022 complied with all statutory requirements. The Commission confirmed that the agreement provided for minimum rates of pay and hours of work that were not less favourable than those stipulated by the relevant award. Additionally, the Commission determined that the agreement satisfied the 'better off overall test', as employees would receive improved conditions and benefits, such as additional leave provisions and better superannuation contributions, which outweighed any minor reductions in base rates of pay.

As a result, the Fair Work Commission approved the Downer Water Services NSW Enterprise Agreement 2022, effective from the date of the decision. The agreement now serves as the legally binding contract between Downer and its employees, governing their terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established