Downer Utilities Australia Pty Ltd T/A Downer

[2022] FWCA 2987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd T/A Downer

(AG2022/3518)

Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2022-2025

Oil and gas industry
COMMISSIONER O’NEILL	MELBOURNE, 30 AUGUST 2022

Application for approval of the Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2022-2025

Downer Utilities Australia Pty Ltd has made an application for approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2022-2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009. The Agreement is a single enterprise agreement.

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.

The Transport Workers Union (TWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

I observe that clauses 15 and 52.1(e) are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Downer Utilities Australia Pty Ltd trading as Downer, the Fair Work Commission was presented with an application for the approval of the Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2022-2025. The application was brought under the Fair Work Act 2009, seeking the Commission's endorsement of the proposed agreement, which was intended to govern the terms and conditions of employment for employees in the gas division of the company. The dispute centred on whether the agreement met the statutory criteria for approval, including compliance with minimum entitlements and other legislative standards.

The primary legal issues before the Commission involved the assessment of whether the proposed enterprise agreement satisfied the requirements for approval under the Fair Work Act. This included scrutiny of the agreement's provisions to ensure that they did not undermine the minimum standards set by the Act, such as those relating to maximum weekly hours, penalty rates, and other conditions of employment. Additionally, the Commission had to determine whether the agreement was made in good faith and whether it included appropriate dispute resolution mechanisms.

The Fair Work Commission determined that the Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2022-2025 met the necessary criteria for approval. The Commission found that the agreement did not set terms and conditions below the minimum standards prescribed by the Fair Work Act and that it included appropriate dispute resolution provisions. Furthermore, the Commission was satisfied that the agreement was made in good faith, as evidenced by the negotiations and consultations that had taken place between the employer and the relevant employee representatives. Consequently, the Commission approved the agreement, confirming its compliance with the legislative framework.

As a result of the Commission's decision, the Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2022-2025 was approved and is now a legally binding instrument governing the employment conditions of the employees in the gas division of the company. The approval is effective from the date specified in the agreement and will remain in force until the conclusion of its term or until replaced by a subsequent agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established