Downer Utilities Australia Pty Ltd

[2025] FWCA 3532

[2025] FWCA 3532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Downer Utilities Australia Pty Ltd

(AG2025/3516)

DOWNER UTILITIES AUSTRALIA PTY LTD (GAS) ENTERPRISE AGREEMENT 2025

Oil and gas industry
COMMISSIONER LIM	PERTH, 22 OCTOBER 2025

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

1. Downer Utilities Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Downer Utilities Australia Pty Ltd (Gas) Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement. 

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met. 

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES): 

1. Abandonment of employment: Clause 15.3 states that termination shall operate from the date of the last attendance at work; or the last day’s absence in respect of which consent was granted; or the date of the last absence in respect of which notification was given to the Company; or from the date which the Company has given the Employee written notice of the day of the termination (which cannot be before the day the notice is given). This may be inconsistent with the NES at s 117 of the Act.
2. Annual leave: Clause 37.1 of the Agreement provides annual leave in days, rather than weeks per s 87(1) of the Act.
3. Public holiday substitution: Clause 44.2 of the Agreement states that by agreement between the Company and Employees, other days may be substituted for the said days or any of them as agreed by the Company. This may be inconsistent with s 115 of the Act, which provides for substitution between the employer and individual employee only.
4. Redundancy Pay: Clause 51.5 of the Agreement provides that the Company may have the general severance pay prescription varied if it provides acceptable alternative employment for an Employee. However, this does not appear to be subject to an application to the FWC under s 120 of the Act.

1. However, I am satisfied that under clause 4.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (together, the organisations), 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), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement. 

1. The Agreement was approved on 22 October 2025 and, in accordance with s 54, will operate from 29 October 2025. The nominal expiry date of the Agreement is 22 October 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE530847  PR792899>