EnergyAustralia NSW Pty Ltd T/A EnergyAustralia NSW

[2023] FWCA 2118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

EnergyAustralia NSW Pty Ltd T/A EnergyAustralia NSW

(AG2023/2095)

ENERGYAUSTRALIA MOUNT PIPER ENTERPRISE AGREEMENT 2023

Electrical power industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 11 JULY 2023

Application for approval of the EnergyAustralia Mount Piper Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the EnergyAustralia Mount Piper Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EnergyAustralia NSW Pty Ltd T/A EnergyAustralia NSW. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made after 6 June 2023.

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 Association of Professional Engineers, Scientists and Managers, Australia (APESMA), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Community and Public Sector Union (CPSU), being the 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 the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2023. The nominal expiry date of the Agreement is 1 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by EnergyAustralia NSW Pty Ltd, trading as EnergyAustralia NSW, for approval of the EnergyAustralia Mount Piper Enterprise Agreement 2023. The dispute centred around whether the proposed enterprise agreement met the necessary requirements under the Fair Work Act 2009 for it to be approved and registered. The Commission, presided over by Commissioner Bisset, had to determine if the agreement was appropriately made and if it contained the mandated minimum terms and conditions of employment.

The legal issues before the Commission included whether the agreement was genuinely made without any duress or coercion, if it complied with the procedural requirements outlined in the Act, and if the agreement contained all the necessary minimum terms and conditions. Additionally, the Commission examined if the agreement met the ‘better off overall test’, ensuring that employees would not be worse off financially by being subject to the agreement. The Commission also assessed if the agreement appropriately facilitated the efficient operation of the enterprise.

In delivering the decision, Commissioner Bisset found that the application met all the legal criteria for approval. The evidence demonstrated that the agreement was genuinely made without any improper influence or coercion. The agreement was procedurally sound and contained all the required minimum terms and conditions. Furthermore, the Commission was satisfied that the agreement passed the better off overall test, as it provided employees with improved terms and conditions compared to their previous arrangement. Consequently, the Commission approved the application and directed the registration of the agreement.

The final orders of the Commission included the approval of the EnergyAustralia Mount Piper Enterprise Agreement 2023 and its registration with the Fair Work Commission, effective from the date specified in the agreement. The decision was made under section 231 of the Fair Work Act 2009, which mandates the approval and registration of an enterprise agreement if the Commission is satisfied it meets the criteria set out in the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established