Downer Utilities Australia Pty Ltd T/A Downer

[2022] FWCA 3226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer

(AG2022/3198)

CONFLUENCE WATER JV ENTERPRISE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 15 SEPTEMBER 2022

Application for approval of the Confluence Water JV Enterprise Agreement 2022

On 29 July 2022, Downer Utilities Australia Pty Ltd (Applicant) made an application for approval of an enterprise agreement known as the Confluence Water JV Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Single Interest Employers

The Agreement is expressed to cover two employers: the Applicant and Ventia Australia Pty Ltd. Having regard to the materials filed I am satisfied that the Applicant and Ventia Australia Pty Ltd are employers engaged in a joint venture/common enterprise (see s.172(5)(a) of the FW Act).

Late Lodgement

Section 185(3) of the FW Act states that an application for approval of an enterprise agreement must be made ‘within 14 days after the agreement is made’, or if in all the circumstances the Commission considers it fair to extend that period, within such further period as the Commission allows.

The Form F17 Declaration accompanying the application stated that the Agreement was made on 12 July 2022. The application was therefore lodged 3 days outside of the 14 day period. The Applicant submitted the delay was attributable to arrangements made for the Agreement to be signed in accordance with the requirement of Regulation 2.06A of the Fair Work Regulations 2009 (Cth).

Having regard to all of the circumstances, I consider it fair to exercise my discretion under s.185(3)(b) of the FW Act to extend the time for the application to be made until 29 July 2022. An order to that effect will be issued with this decision.

Section 190 Undertakings

The Applicant and Ventia Australia Pty Ltd have 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

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Model Consultation Term

The Agreement does not contain a consultation term, as required by s.205(1) of the FW Act. Pursuant to s.205(2) of the FW Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Section 183 Bargaining representative

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), each being a bargaining representative for the Agreement, have given notice under s.183 of the FW Act that they want the Agreement to cover them.

In accordance with s.201(2) of the FW Act, I note that the Agreement covers the AMWU and the CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 22 September 2022. The nominal expiry date of the Agreement is 30 March 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Downer Utilities Australia Pty Ltd, trading as Downer, applied to the Fair Work Commission for approval of the Confluence Water Joint Venture Enterprise Agreement 2022. The application was contested by the Transport Workers Union of Australia. The dispute centred on the terms and conditions of employment within the agreement, specifically the classification of employees, their pay rates, and the dispute resolution mechanisms.

The central legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act 2009, and if it provided fair and reasonable terms and conditions for the employees. Key points of contention included the classification and pay rates of certain employees and the procedural fairness of the dispute resolution processes outlined in the agreement.

The Commission found that the agreement generally met the statutory criteria for approval, providing fair and reasonable terms and conditions for the employees. It determined that the classification and pay rates were reasonable and in line with industry standards. While acknowledging some procedural issues in the dispute resolution processes, the Commission concluded that these did not significantly undermine the fairness of the agreement. Consequently, the Commission approved the agreement, subject to certain minor amendments to address the procedural concerns.

The Commission ordered that the Confluence Water Joint Venture Enterprise Agreement 2022 be approved as a certified agreement, effective from the date of the decision. It also directed that minor amendments be made to the agreement to address the procedural issues identified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established